177 Livingston Street 7th Floor Brooklyn, NY 11201 (718) 254-0700 info@bds.org

Testimony

BDS TESTIFIES BEFORE THE NYC COUNCIL COMMITTEE ON TECHNOLOGY ON ALGORITHM TRANSPARENCY.

TESTIMONY OF:

Yung-Mi Lee

BROOKLYN DEFENDER SERVICES

Presented before

The New York City Council Committee on Technology

Hearing on Intro 1696

October 16, 2017

My name is Yung-Mi Lee. I am a Supervising Attorney in the Criminal Defense Practice at Brooklyn Defender Services (BDS). BDS provides multi-disciplinary and client-centered criminal, family, and immigration defense, as well as civil legal services, social work support and advocacy, for over 30,000 clients in Brooklyn every year. I thank the New York City Council Committee on Technology, and in particular Chair James Vacca, for holding this hearing today on Int. 1696, which would establish basic transparency in New York City’s automated processing of data for the purposes of targeting services, imposing penalties, or policing.

BDS SUPPORTS Int. 1696

The arrival of the digital age in the criminal legal system has been heralded by technology entrepreneurs, law enforcement leaders, and some academics, but it presents a series of new threats to the liberty and well-being of our clients that warrant deeper investigation. However, many of these technological advances are deemed proprietary or otherwise kept secret by police, making true accountability all but impossible. At worst, such tools provide a veneer of color- and class-blind objectivity while exacerbating the racial and economic discrimination and other inequalities in law enforcement practices and criminal and civil penalties. From law enforcement’s use of facial recognition software that disproportionately misidentifies Black people to so-called gang databases and designations that indefinitely flag people for harsh surveillance or worse, based on who they stand beside in a Facebook photo, apparently with no way to be removed, there are numerous examples of technology reinforcing, rather than mitigating or eliminating, biases that afflict our society as a whole. Two key examples that I will focus on are the rise of pre-trial Risk Assessment Instruments (RAI’s) and so-called predictive policing. Int. 1696 will shine a necessary spotlight on these and other areas of the modern surveillance and punishment system.
RAI’s and Pre-Trial Detention

Across the United States, nearly a half a million people are detained pre-trial—legally presumed innocent but locked in a cage. The majority of these individuals are legally eligible for release on bail, but detained because courts set bail in an amount and form they cannot afford. Financial conditions of release are, on their face, discriminatory and amplify broader inequalities in society. While attempts at reform have come in cycles for the last several decades, the most onerous forms of money bail remain in use in most of the country. Meanwhile, multinational surety companies have profited from this mass misery through the financing of the bail bonds industry, which is banned in every country except the United States and the Philippines. Because the courts generally only accept bail in cash or commercial bail bond—as opposed to, for example, an unsecured bond—bail bond agents are often a family’s only hope for getting a loved one out of jail. These agents can charge exorbitant unrefundable fees, demand unlimited collateral and impose onerous conditions, all with no meaningful oversight by local, state, or federal regulators. The industry siphons billions of dollars from marginalized communities across the country while leaving the majority of people with bail set to suffer in jail.

Understandably, there is a demand for something—anything—different, but policymakers must be deliberate about reform. Specifically, the goal of bail reform must be to reduce pre-trial detention and eliminate racial and other disparities. The zeitgeist in bail reform is the promotion of RAI’s to drive decisions about pre-trial detention, but it is not clear this approach will help, rather than harm. RAIs purport to objectively and accurately predict one outcome or another. In reality, RAIs function as a proxy for a series of subjective, human decisions. People decide whether to attempt to measure risk of flight, risk of future criminality, risk of re-arrest, or some combination of the three. People decide what level of offense to attempt to predict, i.e. any offense or a serious offense. People decide which factors to consider in the assessment and how much weight to attribute to each factor in the overall risk score. People then decide what qualitative conclusions to draw from these risk scores, establishing benchmarks for low, medium, and high risks. Finally, judges decide what weight to give the risk assessment when issuing decisions regarding release, supervision, and predictive detention.

In practice, RAIs typically use a series of highly discriminatory metrics that provide little or no utility to seeing the future. Common factors include homelessness, employment status, school enrollment, age, family connections, prior convictions, and prior incarceration. RAI proprietors argue their tools are not discriminatory because they do not consider demographic information, but this analysis ignores the pre-existing sharp disparities in the aforementioned factors. A landmark ProPublica investigation of RAIs found one commonly used tool was more likely to falsely identify Black people as likely to commit a crime. The investigation also found this RAI to be only “somewhat more accurate than a coin flip” in determining a risk of re-offense, and “remarkably unreliable” in predicting violent crime.

RAIs come with a unique threat to liberty in New York State: a concurrent push to allow judges to make assumptions about dangerousness, using RAIs, in pre-trial detention decisions. Under current state law, judges may only consider a risk of flight, with certain exceptions. While RAIs can be used exclusively to measure this risk, many high-level policymakers, including Mayor de Blasio, are urging changes to the bail statute so that dangerousness may be assessed and considered as well. As such, the first order of business is to stop this rush toward dystopic preventive detention. There is ample evidence that even a few days in jail can be criminogenic; preventive detention is a counterproductive tool of public safety. Moreover, there is no guarantee that adding dangerousness to the statute would significantly reduce jail populations. Results across the country are mixed, and courts in New York City already have comparatively high rates of releasing people on their own recognizance.

In short, RAI’s, by their nature, bypass an individual’s right to due process and the individualized, case by case, analyses required of prosecutors, judges and defense attorneys.

The transparency in RAIs afforded by this legislation is critical for policymakers and the public to analyze their efficacy and fairness. Many such assessments are currently proprietary. Currently, the Mayor’s Office of Criminal Justice Services is engaged in a good-faith effort to improve its pre-trial RAI, and it is critical that it be fully transparent. Transparency requires the release of any and all data used to formulate any RAI.  Moreover, the public should have an opportunity to recommend changes before it is implemented.

Importantly, pre-trial detention may not meet the legal definition of a penalty. This legislation should be amended to explicitly include algorithms used to determine custodial detention, incarceration, civil commitment, and supervised release.

There are many better ways to incentivize pre-trial freedom and discourage pre-trial detention, including through expanded use of the unsecured appearance bonds that are already permitted by state. These alternatives must be pursued aggressively. BDS has testified before the Council about bail reform in the past and would be happy to further discuss the issue.

Predictive Policing

Predictive Policing uses algorithms and computer modeling to attempt to predict and prevent crime, including through targeted allocations of resources. In its grudging and incomplete responses to FOIL requests from the Brennan Center for Justice, the NYPD has acknowledge the use of a predictive policing system that was developed in-house as well as a prior purchase of Palantir, a commercial predictive policing product. With both systems, NYPD has stonewalled requests for transparency, citing either trade secrets or vague security concerns. There is a high likelihood that these systems disproportionately impact low-income people of color and other heavily policed groups, but refusing to disclose, for example, the information inputs and the possible or actual outputs, serves to shield the NYPD from scrutiny. Likewise, the public is prevented from evaluating the system’s efficacy and cost-effectiveness. Perhaps resources allocated to identifying a particular housing development and/or certain of its residents as likely sources of crime would be better spent identifying and fulfilling community needs like jobs, affordable and accessible public transit, and quality community-based mental health services.

Int. 1696 will open a window in predictive policing operations and allow us to better evaluate its safeguards against civil rights violations, utility and appropriateness.

The Limits of Transparency

BDS strongly supports the Council’s years-long efforts to establish more transparency in the criminal legal system, but we also recognize the limits of this approach. Ultimately, we as a democratic society must retain the ability to direct our law enforcement, not the reverse. Transparency is an important tool of community control, but it should not be mistaken for the endgame for policymakers. As public defenders, it is impossible for us to zealously protect our clients’ Constitutional rights without knowing, for example, whether the NYPD officers are parked outside their homes in an x-ray van and how they determined their targets; disclosure of this information is therefore critical but the Council should also explore outright prohibitions on certain domestic spying operations. Likewise, the Council or Comptroller could exert authority to block the purchase of improper and invasive technology used for profiling. Ultimately, the Council must regard law enforcement secrecy as a political tool, in addition to a public safety tool. Without transparency, those of us who urge a shift away from punishment and control toward community support are at an information disadvantage, but we know more than enough from lawsuits and police and civilian recordings to rein in the discriminatory and abusive practices of law enforcement and reinvest in communities.

Thank you for your time and consideration of our comments. If you have any questions, please feel free to reach out to Jared Chausow in our Policy and Advocacy Unit at 718-254-0700 ext. 382 or jchausow@bds.org.

BDS TESTIFIES BEFORE THE NYC COUNCIL COMMITTEE ON PUBLIC SAFETY

TESTIMONY OF:

Jared Chausow – Advocacy Specialist

BROOKLYN DEFENDER SERVICES

Presented before

The New York City Council Committee on Public Safety

Hearing on Intro 1611, Intro 1636, Intro 1664, Intro 1712, Resolution 1660, two Preconsidered Intros and two Preconsidered Resolutions

October 16, 2017

My name is Jared Chausow. I am the Advocacy Specialist at Brooklyn Defender Services (BDS). BDS provides multi-disciplinary and client-centered criminal, family, and immigration defense, as well as civil legal services, social work support and advocacy, for over 30,000 clients in Brooklyn every year. I thank the New York City Council Committee on Public Safety, and in particular Chair Vanessa Gibson, for holding this hearing today on legislation and resolutions that relate to index crimes reporting (Int. 1611), Record of Arrest and Prosecution (RAP) sheet errors (Int. 1636), fare evasion arrests and civil summonses (Int. 1664), criminal case dispositions (Int. 1712), outstanding criminal warrants (T2017-6381), so-called gravity knives (Res. 1660), gun violence (T2017-6705) and gun regulation (T2017-6706).

BDS supports Int. 1636, Int. 1664, Int. 1712, T2017-6381, and Res. 1660 and offers recommendations to strengthen some of them below. We take no position on Int. 1611, T2017-6705, T2017-6704, and T2017-6706.

BDS SUPPORTS: Int. 1636 (Johnson) – Requiring the Mayor’s Office of Criminal Justice (MOCJ) to address erroneous criminal records and T2017-6381 – Requiring MOCJ to address outstanding criminal warrants.

According to a 2014 report by the Legal Action Center, The Problem of RAP Sheet Errors, at least 30% of RAP sheets contain at least one error and some contain as many as ten or more. This finding aligns with our observations. In 2015, our Re-Entry Unit launched a Criminal and Police Record Accuracy Project (CP-RAP) to clean-up RAP sheets upon referral. The most common errors we encounter include:

  • missing information about the disposition of cases, or voided or “hanging” arrests, which gives the mistaken impression that they are still open;
  • mistaken information about bench warrants, which can lead to unnecessary arrests and increased risk of having bail set;
  • information about old non-criminal violations and dismissals that should have been—but were not—sealed according to New York State law;
  • and various errors made when different City and State agencies fail to convey information accurately, which can lead to wrongful detention and even arrest by Immigration and Customs Enforcement.

Decades of neglect of RAP sheet accuracy is well known in the criminal justice system. One significant factor in the frequency of these errors is the immense size and scope of the record keeping required. According to the Legal Action Center report, New York State maintains RAP sheets for 7.1 million people, with information inputs from dozens of bureaucracies, each of which may use proprietary databases or even paper files. This information is reported to federal agencies as well which further exacerbates the extent of the impact of these data points. This is a massive undertaking, especially given the high stakes of the records, including lifelong job and housing discrimination, deportation, false arrest and imprisonment, and more. Until very recently, there were approximately 1.5 million open arrest warrants in New York City alone, though local District Attorneys agreed to wipe away nearly 700,000 of these thanks to the advocacy and leadership of Speaker Mark-Viverito. The agencies responsible for entering and maintaining arrest and case disposition data have grossly inadequate systems and no real-time quality control measures in place. But mostly, they do not have the will to fix the problems. Despite numerous efforts to work with DCJS, the agency responsible for NYSID sheets, advocates have been consistently rebuffed. Given the extensive damage that befalls people because of these errors, it is time for real change in this process.

Aggravating the problem of RAP sheet errors, the state court system sells many or most criminal records to countless loosely-regulated for-profit online vendors that provide “one-stop shopping” to employers, landlords and others. Each error or omission is therefore amplified on the internet. The non-governmental online vendors typically offer so-called “background checks” at a lower price than DCJS or OCA—e.g., approximately $33 at First Advantage compared to $62 at DCJS’ contractor MorphoTrust USA—and provide additional information like global records searches. Therefore, these commercial database searches may be the preferred option for most users. Representatives of DCJS have indicated to us that they do not specifically transmit the corrections we make on behalf our clients through CP-RAP to these private companies, instead arguing it is the companies’ obligation to make sure their records are accurate. In other words, nobody is ensuring accuracy and accountability in the vast majority of publicly accessible criminal records.

Based on our experience, it is likely that more errors are recorded, day by day, than fixed. Moreover, the problem of RAP sheet inaccuracies and incomplete entries had already been recognized as a concern by 1991, when the State enacted legislation to automatically seal eligible cases going forward to prevent paperwork lapses, and yet the errors continue to occur. I understand OCA is developing a new Uniform Case Management System that should automatically seal eligible cases that must remain open for a period, such as those that result in an Adjournment in Contemplation of Dismissal. In the meantime, court actors should devise a system to effectively and efficiently confirm sealing where appropriate. It is important to note that the federal database will not be automatically sealed. It is our understanding that thousands of cases that were resolved with a Disorderly Conduct plea in New York State are in a queue at the FBI, waiting to be manually sealed.

Int. 1636 would require MOCJ to serve as a clearinghouse for RAP sheet corrections, analyze the root causes of the errors, and propose solutions, with an annual report on actions taken pursuant to this law. T2017-6381 would require MOCJ to ensure NYPD warrants are consistent with OCA records, establish a means for people to rectify inaccurate warrants, and facilitate the reduction in outstanding criminal warrants. Together, these bills would finally place one agency in charge of wrangling many others to help protect our clients. We support their passage and enactment and thank lead sponsors Councilmember Johnson and Speaker Mark-Viverito.

Additional recommendations:

  • Every person should have free and easy access to their own criminal records, without having to receive an indigence waiver, so they can check for errors and advocate for themselves as needed. A City agency that has access to these records—other than law enforcement—should provide them free of charge.
  • The NYPD should be required to include a sunset clause with any fingerprints it sends to DCJS to prevent hanging and voided arrests from appearing on RAP sheets long-term; if the arrest does not lead to a court case within a given time period (e.g. 30 days), it should be purged.
  • The NYPD should be required to turn over documents needed to aid in clearing up old hanging or voided arrests within three days. Under the Fair Chance Act, employers must give applicants three days to respond to a finding related to a criminal history, and applicants must have a legitimate opportunity to prove that, for example, their records contain erroneous arrest information. Local District Attorneys should likewise be urged to turn over documents related to cases they declined to prosecute within three days.
  • The Council should call on the State to cease its sale of criminal records to third parties at least until it can guarantee that all of the information it provides is accurate and that all information that should be, or may later become, sealed is not disclosed.
  • The Council should call on DCJS to expeditiously comb through its records and remove all information that, as reported in the records, should be sealed pursuant to New York State law. People should not have to trek to courthouses and wait in line for a clerk to obtain a Certificate of Disposition that demonstrates exactly what is already in DCJS’ own records, which is the current protocol.
  • As MOCJ publicizes its role in correcting RAP sheets, it should also publicize new opportunities to seal certain old criminal convictions, pursuant to the State’s new Raise the Age law. BDS is currently promoting its own services to those seeking assistance with sealing through our community office, but we assume that most eligible New Yorkers are unaware of this new law.

BDS SUPPORTS: Int. 1664 (Lancman) – Requiring the NYPD to report on the number of arrests and summonses returnable to the Transit Adjudication Bureau for subway fare evasion.

This legislation will require reporting on fare evasion arrest locations and fare evasion summonses, both of which will aid policymakers and the public in evaluating NYPD practices. Ultimately, BDS and many others believe New York City should end the policing of poverty and invest the savings in making transit more affordable to low-income residents. We support the Fair Fares plan backed by the Riders Alliance, the Community Service Society, a majority of the Council, and many others.

BDS SUPPORTS: Int. 1712 (Lancman) – Requiring MOCJ to report on the charges and dispositions of criminal cases.

The quarterly and annual reports generated pursuant to this legislation will help to inform policymakers and public about our criminal legal system. Data is critical to making smart and necessary reforms to the system. We recommend this legislation be amended to require race and ethnicity reporting along with the charge and disposition data.

BDS SUPPORTS: Int. 1569-A (Gibson) – Establishing a Disorderly Behavior violation with reduced penalties.

BDS testified in support of this legislation in April of this year and continues to support it today.

BDS appreciates the City’s recent efforts to roll back Broken Windows policing and reduce arrest numbers and strongly urges more progress. This policy shift likely saved countless people from unnecessary immigration enforcement and other devastating consequences. Likewise, it is critical that this new non-criminal violation and civil offense not be enforced in addition to any existing summonses.

BDS SUPPORTS: Res. 1660 (Gibson) – Urging Governor Cuomo to sign into law A5667A/S4769A, in relation to gravity knives.

BDS strongly supports A5667A/S4769A and thanks Councilmember Gibson for introducing this important resolution. This bill simply clarifies the definition of illegal gravity knives to make clear that ordinary folding knives like box cutters, used peacefully, are tools, not weapons. These utility knives are commonly sold on-line and in hardware stores to workers and artisans, and only specially trained law enforcement officers are able, often only after several tries, to flick them open by exertion. Nevertheless, New Yorkers are regularly arrested and prosecuted for mere possession of these knives and subject to severe consequences under a vague statute that was intended to criminalize large switchblades.

Our criminal defense attorneys report that nearly every client arrested on this charge is carrying a knife for work. Often, they are maintenance workers, stock room attendants, or other types of laborers. Unfortunately, many cannot obtain verification of their employment because their work is unsteady or informal. The vast majority of BDS clients charged with the relevant offense are Black and/or Hispanic—approximately 86%. Case dispositions vary from client to client, but all are deeply impacted. They suffer the trauma of arrest and contact with the system, including overnight detention in a filthy holding cell and the humiliation of being churned through arraignments and, very often, allocution to a plea deal involving an admission of guilt. They can also lose their jobs and their children, and even face deportation because of these arrests. The criminalization of simple possession of work tools further poisons the relationship between law enforcement and the community and expands the dragnet of our criminal justice system, all without any public safety interest.

As the resolution eloquently states, police and prosecutors have never arrested or charged hardware store owners, such as Home Depot executives, for selling these knives and they continue to be regularly sold throughout the city. This unequal enforcement represents a two-tiered system of justice that both reflects and amplifies broader social inequality.

Client stories:

Mr. B was an 18 year-old freshman math major with a merit scholarship at Pace University when he was pulled over for having tinted windows. Peering inside the car, the officer found a folding knife that Mr. B, who worked at an ice skating rink, used to cut laces. Mr. B, who had no criminal history and zero arrests to date, was arrested and detained. His attorney was able to verify his work-related use of the knife and persuaded the District Attorney’s office to offer an adjournment in contemplation of dismissal (ACD) with immediate sealing to protect his scholarship. Nonetheless, untold numbers of online for-profit databases may maintain records indicating that he was arrested for “Criminal Possession Weapon-4th: Firearm/Weapon,” and Mr. B has since struggled to find employment, suspecting that employers are consulting these databases.

Mr. R had a fifteen year-old conviction for drug sales and had successfully completed parole. He had trouble getting jobs because of his criminal record, but was eventually able to get and maintain a job for a construction company. After police officers spotted a knife clip in his pocket, he was arrested and charged with possession of a gravity knife. Because of his earlier conviction and court history, the prosecutors were able to convince the judge to set a high bail and Mr. R was incarcerated at Rikers until he eventually plead guilty to the weapons charge just to get out of jail. By that point, he had lost his job.

J, a 22 year-old, was employed in his father’s auto repair shop when he was stopped for a traffic violation. Police officers conducted an illegal search and found a knife under his seat. J told the officers that he used the knife to open boxes at work, but he was arrested and charged with possession of a gravity knife, anyway. One of our attorneys met with the arresting officer and the prosecutor in the case to view the knife. After a few failed attempts, the officer was able to flick open the knife, but only with a significant exertion of force. J had never even tried, much less succeeded, in opening the knife this way. (This is very common in gravity knife cases.) Yet prosecutors refused to outright dismiss the case, and J was sentenced to three full days of community service.

Mr. S, a 33 year-old maintenance worker at Brightside Academy, an early childhood education center, was arrested and charged with gravity knife possession and low-level marijuana possession. Prosecutors insisted on Misdemeanors for both charges and Mr. S lost his job after the school received a letter informing them that he was charged with “possessing a weapon/firearm.” After repeated requests to the Kings County District Attorney’s office, we were able to test the knife and found it to be a locking folding knife and not a gravity knife. Prosecutors then agreed to dismiss the case, and the client successfully sued for malicious prosecution and unlawful seizure, but his employer would not rehire him.

All of the BDS clients cited above were listed as Black and/or “Hispanic” on their arrest reports.

BDS offers comments on T2017-6706 (Mark-Viverito) – Resolution calling on Congress and the President to oppose the “Concealed Carry Reciprocity Act of 2017.”

While BDS takes no formal position on this resolution, we note for the record that we have represented clients entangled in the disparate gun regulations that exist between jurisdictions. For example, a veteran from Colorado was arrested in Brooklyn for possession of a handgun that was legally licensed in his home state. He had been unaware of the comparatively strict gun laws in this city. Fortunately, our Veterans Court defense specialist was able to secure a case disposition without any jail time. However, others arrested for this offense are generally processed in the Brooklyn Gun Court and often face far harsher penalties. In fact, when Mayor de Blasio announced this new court in the beginning of 2016, his press release explicitly cited a dramatic increase in average jail sentences that occurred in a previous iteration of a Gun Court—from 90 days to one year. Indeed, we have observed that this court is designed to increase the pressure on our clients to accept harsh plea deals, rather than administer individualized justice. It is unclear what public safety interest is gained by incarcerating people on Rikers Island for an additional nine months.

The Council should also be aware that our attorneys have successfully gotten a number of gun possession cases dismissed based on evidence that NYPD officers had planted the guns, yet prosecutors continue to rely upon these same officers in subsequent cases.[1],[2] (I have attached to this testimony one article cited above for your consideration.) Meanwhile, several NYPD officers in charge of gun licensing have been charged by federal prosecutors for allegedly soliciting and accepting bribes, including “cash payments, paid vacations, food and liquor, the services of [sex workers], and free guns.” They are entitled to a presumption of innocence, but the Council should monitor the case.

Thank you for your time and consideration of our comments. If you have any questions, please feel free to reach out to me at 718-254-0700 ext. 382 or jchausow@bds.org.

[1] Stephanie Clifford, In Brooklyn Gun Cases, Suspicion Turns to the Police, The New York Times, Dec. 11, 2014 at https://www.nytimes.com/2014/12/12/nyregion/gun-arrests-with-2-things-in-common-the-officers-and-unidentified-informers.html.

[2] Nick Pinto, The Incredibles: Judges Said These Cops Can’t Be Trusted, so Why Does the D.A. Rely on Them?, The Village Voice, Nov. 1, 2016 at https://www.villagevoice.com/2016/11/01/the-incredibles-judges-said-these-cops-cant-be-trusted-so-why-does-the-d-a-rely-on-them/.

BDS TESTIFIES BEFORE THE NYC COUNCIL ON SAFE AND ACCESSIBLE SHELTERS FOR HOMELESS YOUTH

­­

TESTIMONY OF:

Elia Johnson – Brooklyn Adolescent Representation Team

BROOKLYN DEFENDER SERVICES

Presented before

The New York City Council Committee on General Welfare

and the Committee on Youth Services

Oversight Hearing on

Safe and Accessible Shelters for Homeless Youth

and

Intros 1619, 1699, 1700, 1705 & 1706

September 28, 2017

My name is Elia Johnson and I am an adolescent social worker with Brooklyn Defender Services (BDS). Our organization provides innovative, multi-disciplinary, and client-centered criminal defense, family defense, immigration, civil legal services, social work support and advocacy in nearly 40,000 cases involving indigent Brooklyn residents every year. I thank the New York City Council Committee on General Welfare and the Committee on Youth Services, and in particular Chairpersons Corey Johnson and Stephen Levin, for the opportunity to testify on issues related to shelter services for Runaway and Homeless Youth (RHY) in New York City.

As a member of the Brooklyn Adolescent Representation Team, I currently work with 50 BDS adolescent clients, ages 14-24. The Brooklyn Adolescent Representation team is made up of dedicated attorneys and social workers and represents over two thousand adolescents ages 13-24 annually. We are grateful for the opportunity to speak today about the ways in which that the Department of Youth and Community Development can better serve Runaway and Homeless Youth.

Homeless Youth and the Criminal Legal System

Public defenders in Brooklyn serve around 500 homeless 16- and 17-year-olds every year, a vast majority of whom are not being served by RHY providers because of the lack of services in Brooklyn. About half of the youth are made homeless by the criminal justice system when the court issues an order of protection against the youth for 90 days after a criminal allegation involving a domestic disturbance, making it illegal for the young person to return home.[1] The other half disclose to their defense team that they are living with friends or significant others because of a breakdown of the relationship with their parents.

Furthermore, RHY providers report that they already serve over 1000 youth per year (at facilities almost exclusively located in Manhattan) from Brooklyn. We estimate that Kings County would need at least 300 crisis shelter beds to ensure that no Brooklyn youth was forced to sleep on the street, sleep on the train, couch surf, or trade sex for shelter.

Instead of providing shelter and services for homeless youth, the City too often relies on the criminal legal system to handle this population’s complex needs, at a heavy cost to taxpayers. A majority of youth surveyed by The Door in 2013 reported that they had been arrested. The cost of a single misdemeanor arrest in NYC is $1750. This covers all police time including overtime pay for arresting officers and supervisors, all pre-arraignment jail costs, and all court expenses.[2] Detaining a person at Rikers Island for a year costs the City $208,500 per year.[3] This figure does not take into account the significant extra costs related to supervision and programming for adolescents incarcerated on Rikers. In contrast, RHY providers received $35,886/youth crisis shelter bed in 2015. The actual cost to RHY providers is far higher than this 2015 reimbursement figure.

Youth Homelessness in New York City – Case Example

Eric[4] was arrested after an incident in his home with his half-sister. Eric, a young man who had been in foster care since the age of 3, had only recently reunited with his father. Unfortunately, as is common with children who have experienced significant trauma, Eric had a hard time adjusting to his new home, and the conflict in the home led to his arrest. Eric was arrested and arraigned in Kings County Criminal Court at night. The Judge issued a Full Order of Protection on behalf of his half-sister. He was released from arraignments at midnight with a metro card and nowhere to go.

Eric was legally barred from returning to the only home he knew in New York City. He had no other family. Eric left Kings County Criminal Court and wondered around downtown Brooklyn before he got on the subway. A policeman found Eric sleeping on the subway and took him to the ACS Children’s Center. Eric spent a few days at the Children’s Center before he was placed in ACS custody at Children’s Village, which is in Dobbs Ferry, New York about 30 minutes outside of New York City. Due to the order of protection Eric cannot return home for the foreseeable future and will remain in ACS custody until he ages out or signs himself out.

Current RHY Capacity

There is a severe need for shelter options for adolescents in New York City. The New York City Department of Youth and Community Development runs a range of services for Runaway and Homeless Youth. Unfortunately, DYCD only has two crisis shelters that serve all youth under 21, Covenant House and Safe Horizon Streetworks Overnight, both in Manhattan. Covenant House, near Times Square, is the largest and has about 200 shelter beds and another 140 spots for longer-term residential stays. The shelter serves youth age 16-21 and turns away about 75 people a month.[5] Safe Horizon, located in Harlem, offers only 24 beds. There are other limited crisis shelter options for LGBTQ youth, victims of sex trafficking, and pregnant and parenting young mothers.[6] Unfortunately, the majority of our clients are teenage boys of color who do not meet these criteria. Drop-in centers exist in all of the five boroughs but do not provide short-term emergency housing to accommodate youth like Eric.

Right now, too many of our clients live in the streets, “couch surf” or sleep on the floors or couches of friends, neighbors or even strangers. Indeed, homeless youth are more likely to be arrested, engage in criminal activity to meet their survival needs, or engage in unsafe sexual relationships or the commercial sex trade because they need a place to sleep. A 2013 study by Covenant House and Fordham University found that 1 in 4 of the surveyed homeless youth became a victim of sex trafficking or was forced to provide sex for survival needs, such as food or a place to sleep. Of these victims, about half reported that the number one reason they had been drawn into commercial sexual activity was because they did not have a safe place to sleep.

The City must do better to provide safe shelter space for youth in the communities that they live in so that they do not end up in these situations. Manhattan, which houses the only two youth crisis shelters in New York City is not safely accessible for youth in Brooklyn, Queens, Staten Island or the Bronx. We applaud members of the Committee on General Welfare and the Committee on Youth Services for the steps they have taken with each of the bills before the Council today, which will go a long way in improving access to housing for homeless youth. We also issue further recommendations for actions that the Council can take on this issue.

We support each of the following bills:

Intro. 1700-2017 – Expand Appropriate Shelter Access for all Runaway and Homeless Youth: We believe that by appropriately tracking the number of RHY in New York City DHS and DYCD will have a better understanding of the true need for shelter services and will therefore take action to allocate funding for youth shelters in each of the five boroughs that are easily accessible by public transportation. The bill also adds a new section to the NYC codes requiring DYCD to provide shelter services to all runaway and homeless youth who request such shelter from the department. This reform is long overdue. It is devastating for service providers like us who literally have nowhere to send our clients in need of a safe place to sleep. Mandating that DYCD find a way to house these youth is a critical first step in ensuring that DYCD providers have sufficient capacity to serve runaway and homeless youth.

Intro. 1699-2017 – Expand the Length of Stay for Runaway and Homeless Youth We support extending the amount of time that young people can stay in shelters to 60 or 120 days, as it often takes at least that long to obtain more permanent housing. We believe that this will allow adolescents to remain in a safe place until a more long-term option can be reached instead of being forced to leave after 30 days, which is the current policy at Covenant House. Often this forces young people to return to unsafe situations or the streets.

Intro. 1705-2017 – Streamline DHS Intake/Assessment for Runaway and Homeless Youth: We believe that streamlining the process for intake and assessment from short-term shelters into DHS facilities is critical to ensuring that young people are able to access long-term and permanent housing. This will decrease the revolving door of young people entering short-term crisis centers and then leaving after the allocated time period with no long-term or permanent solution.

Intro. 1706-2017 – Raise the Age for Runaway and Homeless Youth: As a social worker who works with adolescents, I hear every day from my adolescent clients that they do not want to go into shelters with adults because they do not feel safe in those spaces. Young people under the age of 25 are fundamentally different from adults, as proven by numerous studies on brain development. By raising the age to 24, adolescents in their early twenties will now have a safe place to sleep with people their own age.

Additional Recommendations

  1. Support the opening of RHY crisis shelters in all five boroughs.

Kings County alone needs at least 300 crisis shelter beds to ensure that no Brooklyn youth is forced to sleep on the street, sleep on the train, couch surf, or trade sex for shelter. Right now there are only a handful of crisis shelter beds in Brooklyn and they are only for youth who identify as LGBTQ. The vast majority of runaway and homeless youth must seek crisis shelter beds in Manhattan where they are too often turned away for lack of beds. Runaway and homeless youth have been made homeless by failures of the education system, juvenile and adult justice systems, the foster care system, and adults who have failed to properly care for them. The City can and must address the youth homelessness crisis by opening youth crisis shelters in Brooklyn, the Bronx, Staten Island and Queens.

  1. The City must provide reimbursement for capital investments to RHY service providers to allow them to open crisis shelters in the outer boroughs

We have been told that RFY providers are unable to open new crisis shelters in boroughs like Brooklyn because the City currently does not fund capital investments. The City should assist RHY providers to locate and secure bed space in Brooklyn as landlords are often reluctant to lease to shelter providers. Even better, the City could renovate existing City buildings such as old hospitals or schools for this purpose and then issue RFP contracts for use of these spaces. Additionally, DYCD’s RFPs should include funding for capital expenditures, a current barrier to instituting new beds under the existing DYCD funding scheme. Finally, the RFP should reflect the actual cost of running a crisis shelter bed, as opposed to the current inadequate reimbursement rate. This number must include the provision of wraparound support services for youth housed at the crisis shelter. The availability of high-quality services is critical to the ability of New York’s homeless youth to break the cycle of homelessness and court involvement.

Conclusion

We applaud the City Council for taking these important steps to provide housing for adolescents in New York City. We encourage the City Council to further ensure that everything is being done for RHY in New York City by establishing and funding crisis shelter housing for youth in every borough of the City by incorporating capital investments costs into the RFP process.

Thank you for your time and consideration of this important issue. If you have any questions, please feel free to reach out to Andrea Nieves, BDS Policy Team, 718-254-0700 ext. 387 or anieves@bds.org.

[1] As a matter of practice in Brooklyn, prosecutors regularly ask for and judges regularly issue a full order of protection in cases involving “domestic violence”, even though these are normal disputes between teenagers and their parents. Full Orders of Protection, in effect, usually render our young clients homeless. In contrast, in New Jersey, when EMT’s respond to a domestic disturbance involving a youth, they take the youth to the Emergency Room rather than arresting them. If NYC were to adopt this approach 250 youth in Brooklyn every year would avoid court-mandated homelessness.

[2] Police Reform Organizing Project, Over $410 Million Per Year: The Human and Economic Cost of Broken Windows Policing in NYC (2014), http://www.policereformorganizingproject.org/wp-content/uploads/2012/09/Over410MillionaYear_docx_.pdf.

[3] New York City Independent Budget Office, 2013.

[4] Name changed to protect his identity.

[5] Mireya Navarro, “Housing homeless youth poses challenge for Mayor Bill de Blasio,” NY Times, March 27, 2015, available at http://www.nytimes.com/2015/03/28/nyregion/housing-homeless-youth-poses-challenge-for-mayor-de-blasio.html.

[6] Ali Forney has 32 beds for youth who identify as LGBTQ in Brooklyn, Covenant House has 22 mother and child beds at West 52nd St in Manhattan, and Inwood House in the Bronx has 8 beds for young women.

BDS TESTIFIES BEFORE NYC COUNCIL COMMITTEE ON AGING ABOUT POST-INCARCERATION SERVICES FOR OLDER ADULTS REENTERING SOCIETY

TESTIMONY OF:

James Royall – Reentry Specialist/Advocate

BROOKLYN DEFENDER SERVICES

Presented before

The New York City Council Committee on Aging

September 20, 2017

Good Morning, my name is James Royall and I am the Reentry Specialist at Brooklyn Defender Services (BDS). BDS provides multi-disciplinary, and client-centered criminal, family, and immigration defense, as well as civil legal services, social work support and advocacy in nearly 40,000 cases in Brooklyn every year. I want to thank the New York City Council and, in particular, the Committee on Aging and Chairperson Chin for the opportunity to testify today about BDS’s support for legislation to create a temporary task force on post-incarceration services for older adults reentering society. I also want to express special gratitude to Councilmember Dromm, the lead sponsor of this legislation, who has dedicated himself to the rights and well-being of incarcerated people for many years.

Reentry is the process of leaving a correctional facility, or any state or local custody, and returning to society. All formerly incarcerated men and women experience reentry, irrespective of their manner of release or level of supervision. If the reentry process is successful, there are benefits in terms of improved public safety and the long-term reintegration of the formerly incarcerated. Reintegration outcomes include increased participation in social institutions such as the labor force, families, communities, schools and religious organizations. Increased participation in these social institutions is what strengthens our society.

BDS Supports Int. No. 1616 – a Local Law in relation to establishing a temporary task force on post-conviction reentry for older adults (Dromm).

BDS strongly supports the establishment of a task force for older adults returning to society and offers recommendations to strengthen this legislation. New York State’s prison population is aging. More than 10,100 people aged 50 or older are currently incarcerated in New York, according to the latest available data. Even as the total prison population in this state has gradually decreased, the number of individuals in this older adult category has jumped by 46 percent.[1] Advocates like the Release Aging People in Prison (RAPP) Campaign, Parole Justice New York, Citizen Action and the Challenging Incarceration collective are pushing Governor Cuomo and the Legislature to adopt reforms that would allow for many incarcerated older adults, who have the lowest recidivism rates, to be released. Led by this proposed task force, New York City can be an ally in the parole reform effort by formally supporting these proposed reforms and committing to have the resources in place to help these individuals successfully return.

Currently, there is a broad slate of programs and services for older New Yorkers across the city, and a growing network of re-entry resources, but very little overlap between the two. Older adults endure unique hardships in prisons and jails, as the facilities and staff are not adequately equipped to support them. Crucially, family members and others in the home and community who would traditionally serve as caretakers are prevented from doing so. Likewise, few community-based organizations that serve older New Yorkers specialize in meeting the needs of returning citizens. It is my hope that this task force will hold a microscope to these gaps and galvanize policymakers to fill them.

Recommended Bill Amendments

To make this task force as meaningful and effective as possible, BDS recommends four amendments to this legislation.

  1. First, we believe that the task force should remain in place for at least five years to monitor implementation of the recommendations in its forthcoming report and hold policymakers accountable with additional progress reports.
  2. The legislation calls for one member of the task force to be formerly incarcerated. BDS believes that at least half of the members should have close personal experience with incarceration, either through their own incarceration or that of a family member. The agency officials and academic sought for the task force in the current bill language have a variety of valuable expertise, but nobody understands the problems of re-entry, and how to fix them, better than those who have lived through it.
  3. The task force should also include at least one provider of affordable and/or supportive housing. Our clients’ experiences affirm the reality that stable housing is key to successful reentry, yet “58% of older people (1,699) were homeless upon release and nearly 1,200 went directly to a homeless shelter,” according to RAPP. Such unstable housing can disrupt medication and therapy regimes, impose additional unnecessary restrictions like curfews, and add to the overall volatility and stress of being poor in New York City and subject to widespread discrimination in employment and elsewhere.
  4. Lastly, the bill should require that the task force explore the unique challenges of re-entry for people convicted of sex offenses and make recommendations to the state regarding its movement and residency restrictions for this population. While there are substantial political challenges associated with assisting this population with re-entry, public safety and fairness demand reconsideration of years of policy that ultimately is not linked with positive outcomes or increased public safety.   The restrictions included in the Sexual Assault Reform Act (SARA) generally prohibit offenders from “knowingly enter[ing]” any area within 1000 feet of schools or other facilities primarily used by people under the age of 18.   However, ample research has disproven the underlying assumptions that drive these restrictions. In short, they do nothing to prevent sex offenses from occurring and in fact can increase risks of re-offending by preventing affected individuals from obtaining stable housing and employment or accessing treatment and even mandatory parole office appointments.[2],[3] This has a direct impact on New York City government, which is required by court order to provide shelter but often fails to do so while complying with these restrictions.  Likewise, the state prison system requires a home address to release an individual to parole, but often fails to identify a viable and compliant one. The shocking result is that people in state prisons are sometimes held beyond the end of their sentence until a SARA-complying residence is found.[4] BDS has successfully litigated to remove SARA restrictions for one client, but broader reform is urgently needed.[5] Re-entry is not about the crime of conviction, which is the one thing that cannot be changed, but rather the rehabilitation and re-integration of the individual. This task force should seek to improve outcomes for all returning older adults.

Additional Recommendations

Once the task force is established, BDS will have additional recommendations for members. One area in need of urgent reform that we will highlight, and that is critical to our clients and their families, is prison visiting. Maintaining tight support networks while incarcerated can be both extremely difficult and extremely beneficial for people on both sides of the prison walls. The biggest challenge to maintaining these networks is a direct result of choices made by policymakers, namely the placement of prisons in regions of the state that are generally inaccessible to the communities most people in prison call home. New York State used to mitigate this problem by offering free visiting buses to families and they should be restored as soon as possible. Legislation to do just that, A.7016/S.5693, is pending in Albany and Governor Cuomo and the Legislature should include it in the state budget this coming session. Substantial research has shown that consistent visitation is one of the primary drivers of rehabilitation and a protection against recidivism.[6] It is well worth the investment.

Thank you for your consideration of my comments. I look forward to continuing to work with the Council to support the creation of this task force and ensure that it is effective.

Questions?

Please feel free to contact BDS’ Advocacy Specialist Jared Chausow at 718-254-0700 ext. 382 or jchausow@bds.org.

[1] NYS Comptroller Thomas P. DiNapoli, New York State’s Aging Prison Population (The Office of Budget & Policy Analysis 2017), http://osc.state.ny.us/reports/aging-inmates.pdf (last visited Sept. 19, 2017).

[2] See A ‘Frightening’ Myth About Sex Offenders, by David Feige in New York Times Op-Docs, available at https://www.nytimes.com/video/opinion/100000005415081/a-frightening-myth-about-sex-offenders.html?mcubz=0 (last visited Sept. 18, 2017).

[3] See DCJS Website, “Myths and Facts: Current Research on Managing Sex Offenders,” available at http://www.criminaljustice.ny.gov/nsor/som_mythsandfacts.htm (last visited Apr. 1, 2014).

[4] Christie Thompson, For Some Prisoners, Finishing Their Sentences Doesn’t Mean They Get Out, The Marshall Project, May 24, 2016 at , https://www.themarshallproject.org/2016/05/24/for-some-prisoners-finishing-their-sentences-doesn-t-mean-they-get-out.

[5] Andrew Keshner, Judge Finds State Limits on Sex Offender Moves Illegal, N.Y. L.J., Oct. 6, 2014 at , http://www.newyorklawjournal.com/id=1202672385488/Judge-Finds-State-Limits-on-Sex-Offender-Moves-Illegal.

[6] Minn. Dept of Corr., Effects of Prison Visitation on Offender Recidivism (2011), http://www.doc.state.mn.us/pages/files/large-files/Publications/11-11MNPrisonVisitationStudy.pdf.

 

BDS TESTIFIES BEFORE NYC COUNCIL ON BEST PRACTICES FOR NYC AGENCIES, COURTS, AND LAW ENFORCEMENT AUTHORIZED TO CERTIFY IMMIGRANT VICTIMS FOR U AND T VISAS

TESTIMONY OF:

Sophie Dalsimer – Immigration Attorney

BROOKLYN DEFENDER SERVICES

Presented before

The New York City Council Committee on Immigration

Oversight Hearing on

Best Practices for NYC Agencies, Courts, and Law Enforcement Authorized to Certify Immigrant Victims for U and T Visas

September 13, 2017

Introduction

My name is Sophie Dalsimer. I am a practicing immigration attorney with a mental health specialization at Brooklyn Defender Services (BDS) on the New York Immigrant Family Unity Project (NYIFUP) team. BDS provides innovative, multi-disciplinary, and client-centered criminal, family, and immigration defense, as well as civil legal services, social work support and advocacy, for 40,000 clients in Brooklyn every year.

I thank the City Council for the opportunity to testify about the NYPD U Visa certification process. I have chosen to focus my remarks on NYPD policy surrounding U visa certification because that is the city agency from which BDS most frequently requests certification.

Since our immigration practice began more than eight years ago, BDS has counseled, advised or represented more than 7,500 immigrant clients.  In 2016 alone, we handled more than 1500 immigration matters across a full spectrum of services. We defend detained clients facing deportation, clients identified through our criminal and family defense dockets, and clients referred from our community partners or who connected with us through community outreach clinics.

New York City can and should do more to protect our immigrant community members from increasing immigration enforcement efforts at the federal level. Many of our clients have been victims of crimes and are eligible for U Visas. Yet despite recent changes to the NYPD process for certification of U Visas and T Visas, the NYPD continues to delay decisions in certification and to deny certification because of a client’s criminal history. In short, these policies harm immigrant New Yorkers and their families and communities and should be reformed.

Client Stories

The following stories illustrate the critical need for timely processing of U Visa certifications by the NYPD, regardless of a person’s criminal history. The names are pseudonyms to protect the identity of our clients.

Ms. Archer

Ms. Archer is a 45-year-old mother from Jamaica raising two daughters in the Canarsie neighborhood of Brooklyn. In the early 2000s, Ms. Archer lived with a partner who repeatedly physically and emotionally abused her. Ms. Archer endured this abuse without realizing that she could seek help from law enforcement. Her abuser threatened her that if she went to the police, she would be deported. It was not until Ms. Archer finally confided in a close friend that she came to understand that she could seek help from law enforcement without fear of deportation and separation from her young children.  The next time her partner became violent, Ms. Archer ran out of the home with her daughter and went straight to her local precinct. She provided a full report to police who noted Ms. Archer’s physical injuries. The fear of law enforcement was enough to cause her abuser to flee and he was never apprehended even though Ms. Archer continued to inform police every time he attempted to make contact with her. Eventually, Ms. Archer learned that her abuser was back in Jamaica and retaliating against her family there, including burning down her sister’s home. He threatened to kill Ms. Archer if she ever returned to Jamaica. As a single mother and survivor of a domestic violence who is also illiterate, Ms. Archer struggled to provide for her family. She made the mistake of engaging in shoplifting and was arrested on four occasions, leading to two convictions and two disorderly conduct violations. Ms. Archer deeply regrets her actions.

In late September 2016, NYIFUP requested U Visa certification from the NYPD on behalf of Ms. Archer, who was detained in immigration custody and facing deportation to Jamaica.  The request was denied in December 2016, citing “significant criminal history” as the basis for denial. An appeal was filed in February 2017 with additional supporting documentation. The appeal was denied in late May 2017, this time referencing “extensive criminal history.”

Ultimately, Ms. Archer was able to avoid deportation based on the threats from her former abusive partner who continues to reside in Jamaica. Ms. Archer is now home with her daughters in Brooklyn and is for the first time connected with a literacy program and counseling for domestic violence survivors. However, for survivors of domestic violence who were never married to their abusers, such as Ms. Archer, a U visa is the only path to lawful permanent resident status based on their abuser.  In this case, Ms. Archer was able to remain in the United States, but she does not have the permanent status like that which she might have obtained through a U visa.

Mr. Hernandez

Mr. Hernandez fled violence in his native El Salvador and came to the U.S. at age 16. In 2011, he was brutally assaulted outside a restaurant in East Elmhurst, Queens. His attackers beat him with a steel bat. He woke up in the hospital after undergoing emergency surgery to relieve pressure from blood clotting around his brain. While hospitalized he received occupational and physical therapy, wore a protective helmet and had another surgery to replace fractured bone in his skull with a metal plate.

Mr. Hernandez cooperated with law enforcement following his assault by speaking with NYPD detectives, viewing photo arrays of suspects, and riding along with officers in an effort to identify the assailants. Following his assault, Mr. Hernandez also developed epilepsy and experienced chronic pain and cognitive decline. He described no longer feeling like the same person, becoming slower and easily confused.

It was during this time period, subsequent to his victimization and hospitalization, that Mr. Hernandez was arrested twice and convicted of possession of stolen property and unauthorized use of a vehicle, both non-violent misdemeanor offenses. He has little recollection of the circumstances that led to his arrests due to his brain injury. Mr. Hernandez was transferred from criminal custody to immigration custody and was assigned  a NYIFUP attorney in August 2016.

After gathering relevant records, the NYIFUP attorney filed a request for U certification with NYPD on behalf of Mr. Hernandez in mid-October 2016. In late December 2016, NYPD denied Mr. Hernandez’s request citing “extensive criminal history” as the basis for the denial. An appeal was filed in late January 2017.   A decision on the appeal was not reached until late July 2017, over 6 months later, when NYPD agreed to certify a U visa for Mr. Hernandez.

Mr. Hernandez remains detained and is fighting removal to El Salvador where he fears he will die without access to his anti-seizure medications. The delay in the NYPD’s issuing of a U certification has contributed to his lengthy time in immigration detention

  • Expediting NYPD Responses for Detained Immigrants

In 2016 the NYPD adopted new regulations on “Requesting Certifications for U Nonimmigrant Status (U Certification). These regulations require NYPD to respond to requests for certification within 45 days and respond to appeals to certification decisions within 90 days.

Prior to the passage of this rule, we often would go months and months without receiving a response from NYPD about our requests for certification. This created a great deal of uncertainty in the process for all parties involved, including the courts, judges, attorneys and immigrants. Since the passage of the rule, we have seen NYPD comply with the initial request for certification in a timely manner, but our appeals linger for months before a response.

Expedited responses are particularly critical for our clients detained by Immigration and Customs Enforcement (ICE). Immigration detainees generally appear before an immigration judge every 6-8 weeks. Judges expect to hear regular updates from attorneys about the status of the client’s case. The court process will run much more efficiently if we can inform judges that we have requested a U visa certification and that the NYPD will respond within a specific time period. Additionally, judges are likely to release a detainee on bond once they receive a U visa certification from a law enforcement agency. The Department can play an important role in limiting unnecessary and harmful detention by responding promptly to requests for certification and appeals from detained immigrants, in particular.

Recommendations:

a. NYPD should create a streamlined process for immigration detainees that would allow their cases to take priority over other person’s requesting certification.

Petitioners to the Department should submit in their letter requesting certification whether they are (a) a detained immigrant in removal proceedings, (b) a non-detained immigrant in removal proceedings, or (c) a person making an affirmative application to U.S. Citizenship and Immigration Services (USCIS) (i.e. a person not currently facing deportation).  This would allow the Department to allocate resources in the most efficient manner possible.

b. NYPD should provide on its website a contact phone number and email address for a point person at the Department on this issue.

This lack of information makes it nearly impossible for attorneys and immigration court personnel to inquire about the status of an immigrant’s u-visa request for certification. As noted above, this would be enormously helpful to backlogged immigration courts (who could schedule court dates for after the date when the NYPD expects to respond to the request) and immigrants themselves who are making difficult decisions about whether or not to continue fighting deportation.

Reasons for Denials

While the NYPD now issues denial letters with a checkbox for reasons for denials, we still have little to no information about why our clients are being denied U visas.

In both Ms. Archer and Mr. Hernandez’s cases, we were given no further indication in either the initial denial or the appeal as to why their specific criminal history warranted a denial. It would be helpful for the NYPD to articulate whether it was the gravity of the convictions, the quantity of convictions, the recentness of conviction, or the level of assistance that the petitioner provided in the case in which they assisted the NYPD.

Recommendation:

 c. NYPD should not deny U visa certifications based on a person’s criminal history.

It is more appropriate and efficient to allow the Department of Homeland Security to determine when denial of a U visa is appropriate based on the applicant’s criminal record, rather than refusing to issue law enforcement certifications due to criminal convictions.

The instructions for the law enforcement certification (Form I-918, Supplement B) state: “You should use Form I-918, Supplement B, to certify that an individual submitting a Form I-918, Petition for U Nonimmigrant Status, is a victim of certain qualifying criminal activity and is, has been, or is likely to be helpful in the investigation or prosecution of that activity.” The law enforcement certification form does not request information concerning the applicant’s criminal record, and the instructions do not request that the certifying agency consider the applicant’s criminal record when determining whether to issue a certification.

This is likely because a U visa applicant’s criminal record, if one exists, will always be carefully scrutinized by the Department of Homeland Security, U.S. Citizenship and Immigration Services, before a decision is made about whether to grant a U visa. As part of the U visa application, the applicant is required to disclose all arrests and submit documentation proving the outcome of each arrest. U visa applications are routinely denied due to the applicants’ failure to submit all required criminal documentation, or due to the nature and/or extent of the applicant’s criminal record.

For these reasons, we encourage the Council to urge the NYPD not to deny certification requests based on the applicant’s criminal record.

Conclusion

The legacy of broken windows policing is that low-income people of color in certain New York City neighborhoods are disproportionately targeted by police for arrest for conduct that would not result in criminal convictions for others. Frustratingly, our clients who are victims and who worked with law enforcement to report and investigate crimes are being denied U Visas because of their criminal histories. At the same time that the Council is funding NYIFUP to defend detained people facing deportation, the NYPD is effectively precluding people with even minimal criminal records from even applying for this critical form of relief with the Department of Homeland Security.

We call upon the City Council to work with immigrant communities, service providers and other stakeholders to urge the NYPD to change this policy so that New Yorkers who are the victims of crime can apply for the U visas for which they are eligible under federal law.

If you have any questions about my testimony, please feel free to reach out to me at 718-254-0700 ext. 315 or sdalsimer@bds.org.

BDS TESTIFIES IN FRONT OF NYC COUNCIL ON NYPD RESPONSE TO PERSONS IN MENTAL HEALTH CRISIS

TESTIMONY OF:

Joyce Kendrick – Supervising Attorney

Criminal Defense Practice – Mental Health Unit

BROOKLYN DEFENDER SERVICES

Presented before

The New York City Council Committee on Public Safety

Jointly with the

Committee on Mental Health, Developmental Disability, Alcoholism, Substance Abuse and Disability Services

Oversight Hearing on

NYPD’s Responses to Persons in Mental Health Crisis

September 6, 2017

Introduction

My name is Joyce Kendrick and I am the Supervising Attorney of the Criminal Defense Practice – Mental Health Unit at Brooklyn Defender Services. BDS provides multi-disciplinary and client-centered criminal, family and immigration defense, civil legal services, social work support and advocacy in nearly 40,000 cases involving indigent people in Brooklyn every year. The BDS Mental Health Unit provides specialized representation to criminal defense clients in the Mental Health Treatment Court and in competency evaluation proceedings.

Over the last twenty years, I have represented thousands of clients struggling with mental health challenges in misdemeanor and felony cases in Brooklyn courts. Sadly, the NYPD continues to use unlawful and sometimes lethal force against people in mental health crises on a regular basis rather than de-escalating the situation.

I am grateful to be here to give voice to the experience of my clients and my fellow practitioners and provide recommendations for critical reform in how the NYPD responds to people in crisis.

Introduction

A few years ago, I represented Natasha[1], a woman in her early thirties who was shot in the stomach by police and severely wounded after her friend called the police asking for assistance. The friend told the 911 operator that Natasha was breaking things in her apartment. She added that Natasha was off her medication and in crisis but did not have a weapon. When they arrived at the scene, officers told Natasha to lie down on the floor. When she did not comply with their orders because of her illness, they allegedly sprayed her with pepper spray on her. They subsequently shot her in the stomach with a gun. No weapon was recovered from the scene but Natasha was charged with felony attempted assault of an officer and put under arrest as the paramedics wheeled her away. I met Natasha at her hospital bed where she was on a ventilator being treated for life-threatening injuries. The charges were subsequently reduced to a misdemeanor, making Natasha eligible for Mental Health Treatment Court. All of this could have been avoided if a crisis intervention team had responded to the call, de-escalated the situation, and connected Natasha with the critical services that she needed to stabilize and get back on her feet.

We are here today because Natasha’s story is not an isolated incident. The recent deaths of Dwayne Jeune in Brooklyn and Debora Danner in the Bronx illustrate the urgent need for a shift in thinking about how the NYPD responds to a person in crisis. Without a doubt, the NYPD must do better in training all officers in crisis intervention training.[2] But there is much more that can and should be done to prevent unnecessary and harmful police violence, and the Council need look no further than two recent mayoral initiatives and their reports and recommendations.

In 2011, my office served on Mayor Bloomberg’s Steering Committee of the Citywide Justice and Mental Health Initiative. The Initiative sought to develop and implement data-driven strategies to improve the City’s response to people with mental illnesses who are involved in the adult criminal justice system. BDS also served on Mayor de Blasio’s Task Force on Behavioral Health and the Criminal Justice System which convened in 2014 and issued a report that year.

Both mayoral initiatives studied closely these issues and proposed solutions to divert people with mental illness from the criminal justice system and to improve behavior health services for court-involved people.[3] The 2014 Report indicated that the City intended to spend $130 million to reduce unnecessary arrests and incarceration for people with mental illness. Earlier this year the Mayor announced that two new drop-off diversion centers will open in 2018 to provide short-term stabilizing services for 2,400 New Yorkers per year.

Despite this blueprint to reform, the City has been slow to change. The January 2017 NYC Department of Investigation Report and Analyses on the NYPD’s Crisis Intervention Team Initiative illustrated what those of us on the ground already know: that the NYPD are ill-equipped to respond to mental health crises and they continue to respond, all too frequently, with unlawful or lethal force.[4]

To this date, we have yet to see the proposals articulated in our work on these mayoral initiatives implemented in any meaningful way. Brooklyn Defender Services calls on the Council to work with the Mayor and his administration to implement some of these reforms, particularly those indicated below.

Problems and Solutions

Problem 1: Families and caretakers are scared to call the police during a mental health crisis for fear of escalation.

Families and caretakers of people living with mental illness often feel that they have nowhere to turn when their loved ones are in the midst of a mental health crisis. They recognize the sad reality that in New York City, calling 911 to report a mental health crisis may lead to someone being shot by police.

Debora Danner, the woman tragically killed by police in the Bronx, wrote in an essay that she feared for her life.[5] Sadly, her worst fears were realized when she was shot dead by a policeman last October.

The City Council must work with the Mayor’s Office and the NYPD to change the public’s perception by changing the way that the NYPD respond to mental health crises.

Problem 2: NYPD continue to arrest and District Attorneys continue to prosecute people with mental illness rather than diverting this vulnerable population out of the criminal justice system altogether.

As the Supervisor of BDS’s mental health unit, I only represent people with severe mental illness. The fact that my entire unit exists speaks to the failure of the City to end the unnecessary arrest of people in crisis – the stated goal of the 2014 Behavioral Health Task Force.

Problem 3: People with mental health issues are often homeless or housing insecure. Their families and service providers struggle to provide them with the care and support that they need to stabilize.

The 2014 Report called on the NYC Department of Homeless Services to create 267 permanent housing slots, with supportive services, including mental health and substance use services. Homelessness and housing insecurity prevent people from getting the treatment they need to manage their mental illness.

Currently, hospitals will often hold people unlawfully, saying that they cannot release people to the streets. Yet after being held for a period of time, they are inevitably sent back to the streets because there are not enough beds anywhere in the City for people with severe mental illness.[6] The City must do better to increase the amount of supportive housing to meet the needs of New Yorkers in crisis.

Conclusion

The work has already been done to identify solutions to police violence against people with mental illness. But implementing these solutions requires political will. I look forward to working with the Council and the Mayor’s Office to put into place these reforms to stop the unnecessary arrest and deaths of New Yorkers in crisis.

Please do not hesitate to reach out to me with any questions about these or other issues at (718) 254-0700 (ext. 119) or jkendrick@bds.org.

[1] Name has been changed to protect her confidentiality.

[2] The New York Times reported this week that “more than 5,600 of the 36,000 uniformed police officers in the city had received the training so far.” The Department stated that they are focused “on providing crisis intervention training to lieutenants, sergeants and certain neighborhood-based officers, which is expected to be completed in 2018.” Ashley Southall, In Shooting of Mentally Ill Man, Officer Followed Protocols, Police Say, N.Y. Times, Aug. 3, 2017.

[3] See Improving Outcomes for People with Mental Illnesses Involved with New York City’s Criminal Court and Correction Systems (New York, NY: Justice Center, December 2012), available at http://www.nyc.gov/html/doc/downloads/pdf/press/FINAL_NYC_Report_12_22_2012.pdf and Mayor’s Task Force on Behavioral Health and the Criminal Justice System Action Plan (New York, NY: City of New York, 2014), available at http://www1.nyc.gov/assets/criminaljustice/downloads/pdfs/annual-report-complete.pdf

[4] NYC Department of Investigation, Office of the Inspector General for the NYPD, Putting Training into Practice: A Review of NYPD’s Approach to Handling Interactions with People in Mental Crisis (January 2017), available at http://www1.nyc.gov/assets/doi/reports/pdf/2017/2017-01-19-OIGNYPDCIT-Report.pdf.

[5] Debora Danner, Living with Schizophrenia, N.Y. Times, Oct. 19, 2016, available at https://www.nytimes.com/interactive/2016/10/19/nyregion/document-Living-With-Schizophrenia-by-Deborah-Danner.html?_r=0.

[6] See Benjamin Mueller, Public Hospitals Treat Greater Share of Mental Health Patients, N.Y. Times, Aug. 22, 2017, available at https://www.nytimes.com/2017/08/22/nyregion/new-york-mental-health-hospitals.html?mcubz=1.

BDS TESTIFIES BEFORE NYC COUNCIL COMMITTEE ON IMMIGRATION HEARING ON SUPPORTING NEW YORK CITY’S DREAMERS AND “DACA-MENTED YOUTH

Lindsey Buller – BIA Accredited Representative

BROOKLYN DEFENDER SERVICES

Presented before

The New York City Council Committee on Immigration

Hearing on

Supporting New York City’s DREAMers and “DACA-mented Youth

&

Resolution 1484-2017

June 19, 2017

Introduction

My name is Lindsey Buller. I am a Board of Immigration Appeals Accredited Representative for the Youth and Communities Project at Brooklyn Defender Services (BDS). BDS provides innovative, multi-disciplinary, and client-centered criminal, family, and immigration defense, as well as civil legal services, social work support and advocacy, for over 30,000 clients in Brooklyn every year. The Immigrant Youth and Communities Project (YCP) has represented thousands of Brooklyn immigrants in their applications for lawful immigration status and in defending against deportation in non-detained removal proceedings.  Highlights of our work include assisting more than 320 young clients in their pursuit of Special Immigrant Juvenile Status (SIJS), Adjustment of Status, U visas, Deferred Action for Childhood Arrivals (DACA) and other immigration benefits or removal defense, and assisting more than 1,000 Haitian New Yorkers with their applications for Temporary Protected Status, work authorization, and other immigration benefits or removal defense. I thank the City Council Committee on Immigration for the opportunity to testify today about BDS’s support for Resolution 1484-2017 and the challenges that our DACA youth clients face in accessing education and supporting their families.

BDS’s Provision of DACA Services

Since 2009, BDS has counseled, advised or represented more than 7,500 immigrant clients. In 2016 alone, we handled more than 1,500 immigration matters across a full spectrum of services. Our immigration practice is composed of 17 full-time immigration attorneys, two law graduates, five paralegals accredited by the Board of Immigration Appeals, one full-time and one part time social worker, two legal assistants and two Immigrant Justice Corp Legal Fellows representing more than 1,000 immigrant New Yorkers every year. We are a Board of Immigration Appeals-recognized legal service provider.

BDS recently completed a contract with the Division of Youth and Community Development (DYCD) to provide DACA services.[1] Through that contract we established ourselves as a well-known DACA provider in Brooklyn, and we continue to receive DACA and other immigration referrals from community-based organizations and literacy providers, as well as from former DACA clients referring their friends and family members to us. While many New Yorkers with “simple” expanded DACA cases can be helped by community based organizations and programs like Action NYC, we stand ready to help those with cases made more complicated by interactions with the criminal justice system and/or immigration enforcement.

Indeed, BDS and other public defender offices like ours are in a unique position to provide complex immigration legal services for clients who may not otherwise seek immigration assistance but come to us by way of the criminal and family court systems.

To give you an example, BDS’s Padilla practice advises BDS clients facing criminal charges on the ramifications of any plea or conviction on their immigration status.[2] When our Padilla attorneys screen clients we frequently identify family members of our clients who are eligible for DACA.  Consequently, even if the clients who we represent in our criminal defense/family defense cases are ineligible for DACA themselves (either because of a pending case, past criminal history or because they already have status), we are able to flag for clients that their family members are eligible and may call our office for an intake.  Other times, once we start speaking with the client about his or her immigration status, the client will ask if they can send their family members to us for help, too. Thus, through our robust Padilla representation, BDS attorneys and BIA Accredited Representatives earn the trust of our clients who may then actually confide in us to help their family members come out of the shadows and apply for DACA.

Current Climate for Potential DACA Applicants

Since the new administration took office in January, we have had to be far more cautious about submitting DACA applications, especially for young people who have had contact with the criminal justice system.  We were happy to hear the news just this past Friday that DACA is apparently safe, at least for the moment.[3] We hope to see more qualified individuals interested in applying for the program.

Until recently, we had a pretty steady stream of referrals from adult education programs funded by the city. Students would be identified by their teachers as being possibly DACA eligible and referred to us for legal assistance. Recently, however, we have noticed a bit of a downtick in these types of referrals.  This may also be attributable to the general chill within immigrant communities after the presidential election.

BDS DACA Client Story

Sophia is a 19-year-old young woman from Mexico who has been living in the U.S. since she was 9 years old.  She submitted a DACA application with the assistance of an unqualified tax preparer and was denied.  Fortunately I picked up her case through the Youth and Communities Project and we were able to submit a second application on her behalf, which was approved just before she graduated from high school.

Sophia was an exemplary student in the New York City public school system.  A letter of support from her high school social studies teacher states: “While many of our American-born students may take their education for granted, Sophia does not.  They reality of her circumstances does not allow for this because she knows she has the most to gain from the American education system, but also, the most to lose if she is not able to continue her studies.”

Sophia just finished her first year at Guttman Community College in Manhattan and hopes to transfer to John Jay or Hunter College.  She is pursuing an Associate’s degree in Liberal arts & Humanities.  While this is a very positive development for Sophia, her lack of immigration status means she is ineligible for financial aid. In her words, “Scholarships are hard to get, which makes it ten times harder for me since many require community service, and I already work 3-4 days a week. I am a full time student so it is very challenging. My parents have been saving money and I am enrolled in payment plans in order to pay the tuition. I work in order to buy books, use the money for tuition and any other expenses that come across.”

Sophia is representative of many of our young clients who suddenly find themselves the only members of their family with employment authorization.  They struggle to balance the desire to help support their families financially with their desire to pursue higher education.  Young people in New York should not be forced into the role of primary breadwinners for their families, and we encourage City Council to do everything you can to help support students like Sophia who want nothing more than to pursue their dreams in this country.

Resolution 1484-2017

Sophia’s story, and that of dozens of other BDS clients, exemplify why the City Council should adopt Resolution 1484-2017 calling on the state and federal government to extend protections for undocumented youth by passing the New York State DREAM Act of 2017 at the state level, as well as the Bar Removal of Individuals who Dream and Grow our Economy (BRIDGE) Act of 2017 at the federal level.

New York City does not set federal immigration policy or determine statewide funding for higher education. However, the City Council can use its moral authority as a sanctuary city to call for improved opportunities for all New York residents, no matter where they were born. We will all be stronger and safer if our young people have the opportunity to work and go to school. We strongly urge you to support this resolution to send a powerful message to the state and federal legislatures that New York City believes in the strength and possibility of our immigrant communities.

Questions?

Please feel free to contact me at lbuller@bds.org or 718-254-0700 ext. 309.

[1] It is our understanding that future RFPs related to DACA/DAPA services will be made through the Mayor’s Office of Immigration Affairs and/or Action NYC.

[2] In 2010, the U.S. Supreme Court held in Padilla v. Kentucky that the Sixth Amendment requires defense counsel to provide affirmative, competent advice to a noncitizen defendant regarding the immigration consequences of a guilty plea. Absent such advice, a noncitizen may raise a claim of ineffective assistance of counsel. See Padilla v. Commonwealth of Kentucky, 559 U.S. 356 (2010).

[3] See, e.g., Michael D. Shear & Vivian Yee, ‘Dreamers’ to Stay in U.S. for Now, but Long-Term Fate is Unclear, N.Y. Times, June 16, 2017, available at https://www.nytimes.com/2017/06/16/us/politics/trump-will-allow-dreamers-to-stay-in-us-reversing-campaign-promise.html?_r=0.

ANDREA SAENZ SUBMITS WRITTEN TESTIMONY TO THE NEW YORK CITY COUNCIL EXECUTIVE BUDGET HEARING ABOUT THE NEW YORK IMMIGRANT FAMILY UNITY PROJECT (NYIFUP)

TESTIMONY OF:

Andrea Sáenz – Supervising Attorney, Immigration Practice
BROOKLYN DEFENDER SERVICES

Presented before
The New York City Council
Executive Budget Hearing
May 25, 2017

I. Introduction

My name is Andrea Sáenz. I am the supervising attorney of the New York Immigrant Family Unity Project (NYIFUP) at Brooklyn Defender Services (BDS). BDS provides multi-disciplinary and client-centered criminal, family and immigration defense, civil legal services, social work support and advocacy to more than 30,000 indigent Brooklyn residents every year. Since 2009, BDS has counseled, advised or represented more than 7,500 immigrant clients. In 2016 alone, we handled more than 1500 immigration matters across a full spectrum of services. I thank the City Council for this opportunity to submit testimony about the Mayor’s Office’s proposed changes to the NYIFUP program.

The New York Immigrant Family Unity Project (NYIFUP) is New York City’s groundbreaking, first-in-the nation program providing quality counsel to immigrant New Yorkers who are detained and facing deportation and separation from their families and communities. NYIFUP’s mandate of universal representation is the model upon which all other detained deportation representation programs in the nation are based. I strongly urge the Council and the Mayor’s Office to maintain the current parameters of the program and increase funding so that we can continue to provide universal representation to the rising numbers of immigrants who are being arrested and detained as a result of President Trump’s enforcement priorities. NYIFUP is a profound example of this City’s commitment to immigrant New Yorkers. Any changes to the existing model will be a dramatic step back from the values of due process for all that , by virtue of creating an infrastructure of accountability for prosecutors and judges, have powerfully exposed the injustice of immigration detention and rapid deportation.

II. Background on NYIFUP

   a. The impetus for the creation of NYIFUP

Despite facing the significant possibility of permanent exile from the United States, immigrants in deportation proceedings are not constitutionally entitled to a lawyer if they are unable to afford one. As a result, most immigrants across the country facing deportation are unrepresented. This leads to people being deported who have a right to remain in the country.

Prior to the creation of NYIFUP, only 33% of detained immigrants in New York City had counsel at the time their cases were completed. In contrast, nearly 80% of non-detained immigrants had representation. A 2011 study found that of New York City immigrants who were unrepresented and detained, only 3% obtained successful outcomes, as compared to the majority of respondents who were represented and non-detained who received successful outcomes in 74% of cases.
New York City recognized the injustice of the lack of counsel for detained immigrants and took the historic step of funding free lawyers for poor detained immigrants in removal proceedings. The New York Immigrant Family Unity Project was never simply about the people detained, but was created to strengthen families and communities, as the program’s name suggests. As the Vera Institute of Justice notes, between 2005 and 2010, more than 7,000 U.S.-citizen children in New York City lost a parent to deportation. In addition to the financial hardship caused by the loss of a primary breadwinner, these children have been shown to suffer significant emotional and psychological effects. The legal representation provided by NYIFUP supports New York’s vibrant immigrant community by reducing unnecessary detention and unjust deportation of individuals who have strong ties to their communities.

   b. How NYIFUP works today and the program’s successes

BDS is proud to be a NYIFUP provider, along with The Bronx Defenders (BXD) and The Legal Aid Society (LAS). Since the project’s inception three years ago, BDS NYIFUP attorneys have defended more than 700 people in deportation proceedings. The improved outcomes for detained people represented by NYIFUP attorneys have far exceeded initial expectations: as of December 2015, 52% of pilot clients have been reunited with their families. During the pilot assessment period, NYIFUP attorneys won 71 percent of their trials. NYIFUP is projected to increase the percentage of immigrants who will win the right to remain in the United States by 1,000 percent, compared with prior success rates for detained, unrepresented immigrants.

NYIFUP providers staff intake days at the Varick Street Immigration Court (New York City’s detained docket) 2-3 times per week, seeing all individuals who are appearing for the first time before the court. The providers do a one-page income assessment to determine whether a person qualifies for NYIFUP representation. People who can afford their own attorneys or who already have an attorney are not provided a NYIFUP attorney. The vast majority of detained people who appear at intake qualify for a NYIFUP attorney based on their indigency.

NYIFUP currently represents any detained immigrant who appears at the Varick Street courthouse and meets the income requirements. Judges led the way in calling for the creation of NYIFUP, both to limit injustice and ensure that people with lawful claims to remain in this country were able to do so, and also to increase court efficiency. The goal of the program was never to exclude people from representation, but rather to recognize that if everyone is represented, the system functions more efficiently and justly.

Some of the people that NYIFUP represents resided in Long Island or Westchester County prior to their arrest by ICE, but they are not excluded from representation under the NYIFUP model because the goal was always to promote universal representation for all individuals detained and facing deportation in New York City. Governor Cuomo decided to replicate the NYIFUP model when he set aside $4 million in the FY2018 state budget to ensure that detained New Yorkers in all upstate immigration courts will be eligible to receive legal counsel during deportation proceedings. The state model is also based on venue, rather than client residence, and will cover all individuals detained and facing deportation in four upstate immigration courts. By ensuring that people are not excluded from NYIFUP because of geographic considerations, with the addition of the FY18 funding from the state legislature, New York will be the first state in the nation to ensure that all people who are detained and facing deportation in any immigration court in New York State have a lawyer to help them assert and defend their rights. Brooklyn Defender Services calls upon the Council to maintain the current parameters of the program to ensure that all people whose cases are heard in New York City receive due process.

   c. NYIFUP currently does not discriminate against people if they have a criminal record

People are not excluded from NYIFUP representation because of a criminal record. Indeed, from the outset, NYIFUP contracts were given to immigration attorneys within public defender offices because the function is similar and because NYIFUP providers’ expertise in criminal law improves the quality of representation in cases where crim-immigration issues are central. City Council recognized that people with criminal records were the most likely to be detained; the most likely to be deported without legal representation; and the least likely to obtain representation from organizations that pick and choose clients, in part because people with criminal records often have complex defenses in a deportation case. The City recognized that public defenders are best situated to assess the veracity and significance of a charge and to challenge or appeal the charge or conviction if they find it was unlawful or improper.
The whole point of a universal representation system is to ensure that anyone who may have the chance to stay with their family is given the full chance to litigate that right. It also reflects the very American value that even if a person does not have a defense, they deserve someone in their corner to advise them and give them a voice in the proceedings.

NYIFUP has found great success in representing New Yorkers, no matter a person’s criminal record. Over the past three and a half years, we have helped multiple U.S. citizens avoid wrongful deportation, prevented torture victims from being returned to their home countries where they would face certain death, and prevented deportations based on crimes that never actually happened. Some examples of clients who may have been denied representation based on a criminal history carve-out, but who had extremely compelling cases, are here:

Christopher A U.S. Citizen Released After Months of Zealous Representation.
Christopher left his home country as a young boy because he was afraid for his life and came to the US to find his father, a U.S. citizen who worked on military ships. Christopher struggled with homelessness and spent time in jail. In 2016, he was detained by ICE, devastating his U.S. citizen wife who depended on him financially and emotionally. His NYIFUP attorney realized that under the complex case law on citizenship, Christopher had derived citizenship when his father became a U.S. citizen. After months of factual development, his attorney won a contested evidentiary hearing about key facts in his childhood which allowed her to then file a complete motion to terminate his case on account of his U.S. citizenship. Days after this filing, ICE released Christopher from detention, allowing him to finish his case while working and supporting his family. He would never have known the law he needed to fight his case without an attorney by his side.

Karam Safe from Torture and Restarting His Life.
Karam is an older man who has lived in the United States as a green card holder since he was five years old. He grew up in a deeply homophobic neighborhood and culture, ashamed of his identity as a closeted gay man. Between this challenge, his learning disabilities, his depression, and his father’s abandonment, Karam developed a substance abuse problem and picked up several felony convictions. After being released from prison, he was arrested by ICE. In NYIFUP intake, Karam told the attorney meekly, “It’s OK, I know you’re not going to take my case.” NYIFUP counsel told him we would take his case, and after hard work building a strong record, Karam won Convention Against Torture protection based on the torture or death he would face as a gay man with his specific limitations if deported to his home country. He is now a full-time caretaker for his elderly mother who is fighting cancer, and has a positive outlook on himself that he never had before.

Marco A Young New Yorker Nearly Deported for a Turnstile Jump That Didn’t Happen.
Marco is a permanent resident with cognitive limitations. He had early struggles as a teenager that led to him being convicted of felony offenses, although he received youthful offender status on those. ICE placed him in deportation proceedings. Since the law does not allow ICE to deport Marco based on youthful offender cases, they charged him as subject to deportation for a single turnstile jumping conviction from when he was 16. While he was unrepresented, Marco was actually ordered deported on this charge. His case was later re-opened, and subsequently, Marco’s lawyer realized that Marco’s criminal records were wrong, and that this case was a mere disorderly conduct violation, not a turnstile jumping. ICE counsel refused to correct their mistake, and Marco’s attorney obtained new certified dispositions and filed a written motion to terminate his case. The immigration judge agreed and terminated the case, and Marco no longer faces deportation as a result of simple errors in his records.

As these examples show, a person’s criminal record, even if they have been convicted of serious felonies, does not preclude someone from relief from deportation under our immigration laws. Yet none of our clients would have been able to make these complex legal claims on their own without the assistance of an experienced deportation defense attorney. By not limiting who has a right to counsel, NYIFUP currently ensures that people are entitled to stay in the U.S. with their families may do so. Those who do not have a legal path to remain here are assured that they had qualified counsel review their case and provide them and their families with information about their legal options as they navigate one of the most difficult decisions of their life, to accept an order of deportation.

III. Increasing Immigration Enforcement

The NYIFUP Coalition jointly requests $12,000,000 to fully fund the New York Immigrant Family Unity Project in FY2018 to ensure that every detained New Yorker has legal representation when facing deportation.

a. Rising caseloads

Immigration arrests are up 40% nationwide, as ICE ramps up enforcement efforts since President Trump took office. This figure is consistent with what we have been seeing on the ground at intake. Not only have caseloads been particularly heavy this fiscal year, but the Varick Street Court began running initial appearance dockets three times a week instead of two times a week in May, which will cause an increase in intake of up to 50% over previous intake levels. Indeed, we have had to make the difficult decision to stop picking up cases at intake in the month of June because we have already exceeded out caseloads targets as determined by the City for FY17. This means that when detained people appear in immigration court for the first time after May 25th, we will be unable to take their cases because we are over the contractual maximum. During this hiatus from intake, NYIFUP attorneys will continue to go to Varick to do Know Your Rights presentation, provide individual advisals, and request adjournments, but will not pick up new cases. Unless the City provides more money for FY18 to meet the increased need, we will not be able to tell these people that we will be able to take their cases at a later date. The need for City support of NYIFUP has never been more acute.

To make matters worse, not only are we seeing more cases, but we see that ICE has changed their policies in the courtroom, making it more difficult for us to obtain the kinds of favorable outcomes that we received last year.

   b. Asylum seekers no longer being released on bond

For existing cases, we are seeing decreases in the use of prosecutorial discretion and discretionary release. From February to mid-March, we did not have an asylum seeker released from ICE custody for a period of nearly seven weeks. It appears that the White House’s January 25 executive order on border enforcement had the effect of ICE refusing to release detained asylum seekers even where they had passed an initial screening interview and had a sponsor or family member with lawful status ready to house and support them. Other immigration legal service providers across the country also report that ICE has virtually stopped granting detained immigrants bond or parole, keeping them incarcerated throughout their cases unless they successfully appeal to an immigration judge. Since March, we have had a few releases since starting to file federal habeas corpus litigation against this practice, but remain concerned that going forward ICE’s default will be to detain everyone, including asylum seekers, parents, and victims of violence and trauma, and to fight release however we seek it.

   c. ICE targeting people who won relief but have not yet received their visas or green cards

We are also seeing that NYIFUP clients who have been granted relief but have not yet received their green cards are being sought out by ICE and re-arrested. For example, we represent a 16-year-old client from Central America who has an approved Special Immigrant Juvenile Status (SIJS) application who was arrested by the ICE gang unit and is now is a secure juvenile detention facility. While his SIJS application was approved, he has not yet received his visa number from USCIS. It is unclear to us why he was taking into detention by ICE, as he was not arrested by the NYPD or did not try to re-enter the U.S., two reasons that people are sometimes re-detained after release.

   d. Arrests in the courthouses

Our immigration clients, like our criminal defense clients, are scared to go to immigration court. ICE agents now roam the hallways at 26 Federal Plaza and we have observed ICE agents arresting people in the courts. This was uncommon in recent years. For example, BDS represents a client who was re-detained by ICE when he appeared for an immigration court date last year. How can we adequately counsel our clients about the importance of attending their immigration court appearances to fight against deportation when they face the threat of coercive immigration detention every time they enter the courthouse doors? Once detained, people depend on NYIFUP to represent them to help them challenge their detention.

   e. ICE OSUP check-ins

In some cases, ICE may decide not to execute a final removal order and might instead issue an “Order of Supervision,” or OSUP. A “post-order-of-removal” Order of Supervision may be issued under limited circumstances, such as when ICE determines the individual cannot be removed due to his or her country’s refusal to accept them, or when it is otherwise impracticable or contrary to the public interest to remove the individual. An Order of Supervision is considered to be a “humanitarian act” on the part of ICE, and may be available if the non-citizen is the primary care giver to a child with a medical condition, or if they themselves are receiving medical treatment for a serious condition, etc. The Order of Supervision will direct the non-citizen to appear at regular ICE check-ins, usually every few months and at least once a year.

Our clients who have been attending regular OSUP check-ins for years are now terrified to appear before ICE. One of our NYIFUP clients who was released from detention because he had a heart attack while in custody was recently hospitalized because of the stress and fear of deportation. Clients who previously checked in once or twice a year are now being asked to return in a couple of weeks or a month with their passports, ostensibly to facilitate deportation.

Our attorneys and office staff who are already overworked are doing their best to accompany our clients to OSUP check-ins, but we simply do not have the capacity to meet the need and quell the well-founded fears of our clients and threats of detention and deportation.

   f. In the Community

i. Clamoring for Know Your Rights

Since the presidential election last fall, our office has received increasing requests from the community to present Know Your Rights trainings to the community. Since the first immigration Executive Order was announced we are now receiving near daily requests for assistance from elected officials, community-based organizations, city agencies, religious institutions and the press.

ii. Daily Calls from Current and Former Clients

All of our attorneys and paralegals have seen a huge increase of panicked calls from our clients, current and former, about what to do if ICE is at their door, whether or not they can travel, what they should be doing with their U.S. citizen children, whether they should appear in court, requesting immigration legal services for their loved ones, and more.

In short, our communities are crisis and need the support of legal service providers more than ever. We want to continue to support all of our former and current clients, as well as serve more people, but our capacity is limited by the resources currently available to us.

IV. The Mayor’s Office’s Proposed Changes to NYIFUP

At the Executive Budget Hearing on May 11, 2017, the Mayor’s Office of Immigrant Affairs testified that the Mayor intends to allocate $16 million to immigration legal services, with an as yet undetermined amount to be earmarked for deportation defense. They also indicated that the Mayor’s plan would exclude people who have any of the 170 criminal convictions listed in the City detainer law from representation under any baselined city funding, and potentially exclude people who are not New York City residents.

We are deeply concerned about the Mayor’s proposal to limit NYIFUP’s universal representation model and deny certain categories of people the right to an attorney. It is morally wrong to allow any person who is detained in New York City immigration courts to be excluded from representation. Once we start picking and choosing who will get an attorney, we have unequivocally altered the fundamental purpose of NYIFUP, which is to provide everyone with a chance to make their case to the court that is deciding their fate.

   a. The types of convictions the Mayor has used to exclude our fellow residents from representation are not necessarily serious or recent

The list of 170 excludable offenses is a very broad list and it includes many cases that are not serious. Some examples from Brooklyn Defender Services’ own experience are as follows:
Assault in the 2nd degree:
o An immigrant mother used corporal punishment, but did not injure her child, not knowing that the laws and cultural norms in the U.S. are different from her country of origin.
o A client got frightened when a plainclothes police officer approached to arrest him. When the client ran, the officer fell and skinned his knee; the client was charged with assault 2nd because there was injury to an officer.
o A client had a verbal argument with a 66-year-old man who didn’t like that the client was smoking a cigarette. During the argument, the client pushed the man away, and the man fell to the floor. When the man told police his leg hurt, client was charged with assault 2nd because the complainant was 65 or older.
Criminal possession of a weapon 3rd:
o A gun was found in the closet in one room of an apartment. Every resident of the home, including the tenant’s mother and grandmother, was arrested and charged with possession of the gun.
Burglary in the 2nd:
o A homeless client went into the lobby of a building and took a trash bag. Because a lobby is considered a “dwelling,” the client was charged with felony burglary of a dwelling.
Robbery in the 2nd:
o An after-school fight turned into a “robbery” when one of the participants in the melee dropped his phone and another person picked it up.
Robbery in the 3rd:
o A homeless man pursued a couple for two blocks after asking them for spare change. No weapon or actual threat is required for this crime, so police often charge a person with felony robbery for “aggressive begging.”

   b. There is no time limit on the Mayor’s stated policy, punishing even people with very old convictions, who may have a chance to fight deportation but would not be able to mount a defense.

For example, a father who was brought to the U.S. as a child, got into trouble as a teenager, and is now in his 40s with a job and children of his own, would be unable to make his case that he should be allowed to stay in the country under discretionary relief. Currently, a qualified NYIFUP attorney would ensure that every legal and factual issue is investigated and that all the relevant information is before the court.

By foreclosing legal representation in the first instance, anyone with a compelling story will be summarily deported without having a chance to explain their circumstances. Prior to NYIFUP, claims of this type simply did not succeed when people were unrepresented. In the example of the father above, he was never incarcerated, successfully completed probation, and attended college. He now works, pays taxes, and attends church. Without an attorney, this man would be summarily deported, at great loss to his family and community. Many of the most compelling cases fall within the technical definition presented by the Mayor and may not qualify for NYIFUP if his policy is enacted as stated.

   c. The proposed residency requirement would mean that many people who are intimately connected to the fabric of New York City would be excluded from representation simply because they cannot afford City rents

New York City is the life center for all of the surrounding areas. Our city benefits significantly from the labor and investment of the millions of people who come to our City every day to work. Manhattan alone sees its population double during the day, from 1.6 million to 3.1 million, because of the influx of commuters from the other boroughs and outside the City. As rents rise, more and more vulnerable groups are being forced out of their communities, out into Westchester or Long Island so that they can afford to put a roof over their families head, even if it means hours-long commute every day to the City to work. The vast majority of our clients are housing insecure, and many are homeless, or spend time at the homes of friends, because they cannot afford city rents. Many of our NYIFUP clients have children and family members who live in New York City, even if they themselves did not reside within the five boroughs when they were arrested by ICE.

The purpose of NYIFUP has always been to promote the safety and well-being of New York’s immigrant communities, including U.S.-citizen children of immigrants, with the recognition that helping adults who have the right to stay in this country and provide for their families helps the community as a whole. By limiting the program to people whose last address was located in the City, we damage the universal representation mandate that is premised on the recognition of the broader benefit that NYIFUP services provide to our immigrant communities.

V. The Critical Importance of NYIFUP’s Universal Representation Mandate

Universal representation protects the most vulnerable New Yorkers, helps to combat racial disparities, and sends a strong message to our immigrant communities that the City will support and protect them against federal policies that are explicitly and intentionally promulgated to exclude and deport immigrants of color from our country.

   a. The most vulnerable New Yorkers will pay the highest price without counsel

People who are the youngest, the oldest, the mentally ill, the sick and disabled are at the most risk if they do not have an advocate to look at their case and determine if they can avoid deportation, usually to a country that does not have medical care to meet their needs. If any bar to representation is created, then those who need an advocate the most will not even get an attorney to look into their situation. Currently, NYIFUP attorneys make sure that people who may not be fully competent due to their age, health or other circumstances are protected in the legal proceedings and in the community.

Even if a vulnerable person ends up being deported, NYIFUP staff are able to expedite the deportation, reducing an unnecessarily jail stay, and can also coordinate with the client’s family to make any arrangements possible, deliver identity documents or belongings, and notify relatives in the home country.
b. Due to the racial disparities in the criminal justice system, the people most likely to be arrested, overcharged, placed in jail on bail and forced to accept a plea that would not minimize collateral consequences are overwhelmingly black and Hispanic.

It is important to view this policy in the context of the racial disparities in the criminal justice system. A black or Latinx person is more likely to be arrested for something that a white person would not be arrested for. In the examples of 170 crimes that would be excluded under the Mayor’s proposal, it is unlikely that a white mother who used corporal punishment would be arrested. It is also unlikely that a group of kids fighting after school would result in arrests in a white community. Certain groups of people are more likely to be saddled with one of the convictions in the detainer list because of their ethnicity. This is compounded by the fact that the person is likely to be in jail solely because they cannot afford bail. If any resolution of the case becomes available that would allow the person to go home, he or she is likely to accept it even if there is a chance of an immigration consequence.

Under the Mayor’s proposal, attorneys who are ready, willing and able to make sure that after all that has already happened to the person, they are not unfairly deported, would decline to even interview the person to see if they have any remedy before the Immigration Judge. This compounds the dramatic racial disparities that exist right now rather than starting to even the playing field for people of color.

   c. New York City’s clear message to all New Yorkers that if their loved one is locked up and facing deportation, they will not be alone fighting their case is eviscerated by anything less than universal representation

Over the past four years, the NYIFUP providers have shown the immigrant community that NYC stands by them and will ensure that they and their loved ones are treated fairly and with dignity. Even in cases when we cannot avoid deportation for a client, the fact that the information is clearly explained, family members are apprised about what is happening, and community organizations are clear who to call for help sends a powerful message to the community about what New York City stands for.

With families, individuals and community-based organizations unable to assess eligibility, the work done to support the immigrant community will be lost. The uncertainly and anxiety of the immigrant community will result in unscrupulous people taking advantage of people, many of whom would have been eligible for NYIFUP.

VI. Conclusion

NYIFUP has never been more important. We are a human shield for our clients, doing everything in our power to show them compassion in a system that increasingly views our clients as deportable others – “criminals” or “aliens” with rights that can and are regularly trampled on. Even when we lose our client’s case, we provide them with the opportunity to share their story with the prosecutor and judge and make the case why they deserve to remain in this city with their family and community.

We ask that the City Council reject the Mayor’s proposal to eliminate NYIFUP’s mandate of universal representation and instead, continue the program’s eligibility requirements as they currently exist while increasing funding to meet the increased need of immigrant New Yorkers in detained deportation proceedings.

If you have any questions, please feel free to contact me at 718-254-0700 ext. 434 or asaenz@bds.org. Thank you.

SCOTT HECHINGER TESTIFIES BEFORE THE NYC COUNCIL ON BAIL REFORM MEASURES

TESTIMONY OF:

Scott Hechinger

Senior Staff Attorney, Criminal Defense Practice

BROOKLYN DEFENDER SERVICES 

Presented before

The New York City Council Committee on Fire and Criminal Justice Services

In relation to Int. 1531-2017, Int. 1541-2017, 1561-2017, Int. 1576-2017 & Int. 1581-2017

May 2, 2017

I. Introduction

My name is Scott Hechinger and I am a Senior Staff Attorney at Brooklyn Defender Services. BDS provides multi-disciplinary and client-centered criminal, family and immigration defense, civil legal services, social work support and advocacy to more than 30,000 indigent Brooklyn residents every year. Over the last six years, I have represented thousands of clients facing misdemeanor and felony charges, from arraignment to trial. I see the consequences of bail and the administration of bail first hand, day in and out.

BDS deeply appreciates the work of council members on the Committee on Fire and Criminal Justice Services to minimize the criminal justice system’s reliance on pre-trial detention and bail.  I am grateful to be here to give voice to the experience of my clients and my fellow practitioners and add support to the practical and productive process-oriented reform proposals being considered today.

II. Background

“Will I be going home?”

Those are often the first words I hear my client say when I meet them behind the arraignment courtroom, bars or glass separating us. I first try to deflect and talk about the allegations and find out more about them, their story, their community ties, what brought them there.

But I can only deflect for so long. For most of my clients, the answer is “no, you’re not going home. Not if bail is set, at least.”

No matter the important process reform proposals being discussed today, when bail is set, most of clients will face the hell that is Rikers. That is because most of my clients cannot afford any amount of bail or the amount of bail set by judges. They will lose jobs. They will lose housing. They will leave those in need of caretaking without caretakers. They’ll miss medical necessities. And they ultimately will also have worse case outcomes.

Yet for those who may be able to afford some amount of bail, all too often the answer to that first question is also “no.” Not because of their inability to pay. But because of flaws in NYPD, court, and DOC processes that operate as barriers to accessibility and transparency. Flaws that undermine the purpose of New York’s bail statute: “to improve the availability of pre-trial release.”[1]

Financial conditions of release are on their face obviously unfair, but they also make for astoundingly poor public policy. It costs New York City taxpayers approximately $247,000 a year (nearly a $677 day) to keep someone incarcerated in Department of Correction (DOC) custody.[2] Research has shown that spending even two days incarcerated during the pendency of a case can increase the likelihood of a harsher sentence, can cause a permanent decrease in employment prospects, promote future criminal behaviors and have long-lasting negative health implications.

New York’s multi-layered bureaucracy and flawed practices involved in the process of the payment of bail results in individuals being unnecessarily sent to Rikers Island when bail could be paid prior to leaving criminal court, and/or held far longer once there.

Brooklyn Defender Services supports the proposals before this committee today, with some recommendations for increasing impact. Together, these proposals would:

  • Enhance accessibility, making it easier for individuals and families to secure timely pre-trial release, preferably before ever entering Rikers Island;
  • Reduce unnecessary obstacles that now stand in the way of individuals and families who may be able to afford bail from paying it; and
  • Promote transparency around the system of pre-trial detention by providing better information on the payment of bail to loved ones and by reporting outcomes so that law and policymakers can work toward reducing the numbers of those detained pre-trial.

III. Bills

Intro No. 1531-2017in relation to requiring the department of correction to efficiently facilitate the processing of bail payments

BDS strongly supports the introduction of this bill which would require DOC to accept cash bail payments immediately and continuously after a person is admitted to the custody of the DOC.  The bill also requires that the Department release inmates within two hours of payment. The bill also requires DOC to accept cash bail at the courthouse if there is not another location within one half mile of the courthouse.

Once bail is set at arraignments and the NYPD transfers custody to DOC in criminal court, bail cannot be paid until the person is first transported to Rikers, processed, and admitted, a process which often takes upwards of twelve hours. Until then, the person is “in transit.” Family members are forced to continuously check back in at bail windows, or online, to see when their loved one has finally made it through intake so they can finally post bail at that time, an arduous and time consuming process. For individuals with jobs, children and other family obligations, and those who live far away from Court, Rikers, or a Rikers borough facility, this means that bail usually will not get paid until sometime the following day. A person is thus forced unnecessarily to spend the night at Rikers, in intake, where there are no beds, no showers or access to medical staff. This bill would allow family members and others to pay bail while a person is “in transit” and begin the process of getting their loved one released from custody.

Yet in BDS’s experience, even after bail is finally paid, it takes clients a minimum of ten hours to be released from DOC custody. Indeed, we recently had a case where a client was not released for more than 27 hours.

Our client, who I will call Mr. B, was incarcerated at Brooklyn Detention Complex in February 2017. In early February he was transported to Brooklyn Supreme Court where he was placed in a room with another inmate in the Brooklyn Supreme Court “pens” on the third floor. He fell asleep on a bench and awoke to the other inmate sexually assaulting him. He immediately reported the assault to his attorney. After court, he verbally reported the incident to a DOC captain and requested to make a written report. He was not able to get an officer’s attention so he resorted to cutting his wrist, which finally prompted him to be seen by mental health and medical staff and file an incident report for the sexual assault.

Mr. B’s defense attorney was able to get into contact with Mr. B’s family, all of whom live in Ohio. Despite the distance and significant hardship, the family got the money together to pay a bail bondsman to bail Mr. B out and get him out of custody nearly three weeks after the sexual assault. However, the bail bonds agent paid the bail on the instant case, but not the $1 bail on a separate case. The bail bondsman told the family he would not pay the $1 bail unless they paid him an additional $125, which the family could not afford, so Mr. B remained in custody until the next day in late February, when our jail services social worker was able to go to Brooklyn Detention Complex to pay the $1 at 9 am.

Bail was officially paid by 11:10 am after a two-hour process, yet Mr. B was not released for another 27 hours. BXDC did not even transfer Mr. B from his housing unit to intake until 11 pm, 12 hours after bail was paid. They then said he needed to be cleared by mental health before being released. DOC transferred Mr. B from intake to the clinic at BKDC at 4 am the following day. He waited several hours before being seen by mental health staff and was later discharged from DOC custody at 2 pm, 27 hours after bail was paid.

This bill is a critical step forward if the end result is that people like Mr. B are released in two hours, as compared to 27, but we fear that the bill will only function as designed if DOC is held accountable in instances where they fail to comply. As currently written, there is no enforcement mechanism or cause of action for defendants who are not released within the two hour period. Without these protections, we believe that DOC will not have an incentive to change current practice.

We are also concerned that section (b) of the statute, as currently written, could be used to allow Mr. B to be held for 27 hours, as he was here, when mental health issues are implicated. It is not uncommon, in our experience, for abuse and assault experienced in detention to be the catalyst for mental health problems. However, a person who has paid bail to escape abuse should not be held even longer than someone who was not. We are not suggesting that someone who is experiencing an intense and immediate psychotic episode be released to the streets (there is already a competency process in place to handle cases like this), but we do want to point out the potential for abuse in the bill as currently written. If facts like Mr. B’s never see the light of day, these instances of abuse will continue to occur. In short, we need to have a review process for DOC decisions to hold city agencies accountable in individual cases where injustices occur.

Intro No. 1541-2017to permit the delay of the formal admission of inmates to the custody of the department of correction in order to facilitate the posting of bail

BDS supports the introduction of this bill that would authorize DOC, in their discretion, to hold someone for no more than 12 hours to allow the person’s family or friends to come to the courthouse to pay bail and avoid DOC detention altogether. The bill, however, effectively precludes delay in felony cases and DWIs.

While most of our clients cannot afford any significant amount of bail, we do have some clients who would be able to pay bail if they had sufficient time. More time is critical for our clients as bail payers often do not yet know about the arrest at the time of arraignment, work full time jobs and cannot just leave work, live far away, need to cobble together funds from family and friends, or need to secure the help of a bail bondsmen. Currently, when bail is set, we as public defenders have to scramble to delay the transfer of custody from NYPD to DOC, but the success of the request depends on factors outside of our control: the mood of NYPD personnel, the number of individuals in the holding pen, the Rikers bus schedule, or the time of day. In any case, thirty minutes is the norm and three hours is the absolute maximum delay now allowed before an individual is transported to Rikers.

We believe that 12 hours would, in some cases, be sufficient time to prevent unnecessary incarceration in DOC custody.

The permissive language in this statute would not require DOC to comply with the outlines proscribed, but it would require DOC to report on how often they voluntarily comply with the statute. Thus we support this bill with the understanding that it appears to be intended to function more as a voluntary pilot program than as a bill to actually facilitate the posting of bail.

We recommend amending the bill to actually require DOC to comply rather than permit them to delay transportation at their discretion. We also recommend amending the language in 1(a)(2) so that it is more clear; the current language is confusing.

The bill also leaves unanswered questions. How would this proposal work in night arraignments? Is this only for people who are arraigned during the day? Delay is “not permissible” for anyone who has bail set in an amount of $10,000 or more: essentially all felony cases. Given that the vast majority of cases where bail is set involve felonies – not misdemeanors, why was this particular threshold selected? Moreover, bail in the amount of $10,000 or more is usually paid using bail bondsmen, a more time consuming process. If the purpose of the bill is to serve as a pilot experiment, then many of these issues could be ironed out over the coming months. But we recommend that the Council consider all of the language carefully before signing anything into law.

Intro No. 1561-2017in relation to requiring the department of correction to facilitate the posting of bail or bond

BDS supports hiring someone to work in DOC to assist inmates to pay bond. Critically, this bill would ensure that a bail facilitator meet with inmates within 48 hours of admission to DOC custody and provide inmates with key information, including the amount of their bail or bond, their NYSID and other identifying information, and options for bail payment.

We strongly recommend that the bail facilitator position not be staffed by a corrections officer, but instead by a non-profit or other independent entity to improve collaboration and trust between the eligible person fighting for their release and the bail facilitator. We also request that there be a facilitator for each facility, as moving between the various facilities presents many challenges.

We also wonder how the facilitator will work with bond companies. Bond agents use a host of abusive practice to prey on those in need of their services. These practices have flourished unchecked. The bail facilitator should be trained to know the legal obligations of bail bonds companies and help mediate and advocate for the incarcerated person and their family.

Intro No. 1576-2017 – In relation to requiring the New York City police department to permit arrestees to access contact information

BDS supports this bill and has long called on the NYPD and court staff to allow detained individuals access to contact information in their phones. Now more than ever, individuals do not remember phone numbers of loved ones, friends, and family. Cell phone contact lists and speed dials have overtaken memories.

Without contact information, there is no way for defenders or the client to make contact with anyone who may be able to pay bail for the client, or simply support him or her in arraignments, which would strengthen defense counsel’s application for release. In addition, without contact information, the Criminal Justice Agency (CJA) will have a difficult time verifying community contacts, and for purposes of the delay proposals outlined in Intro No. 1541-2017 neither DOC nor the CJA will be able to make “direct contact with a person who reports that he or she will post bail . . . .”

We would recommend amending the language to ensure that arrestees are able to look at their own phones and write down the numbers themselves. As currently written, the bill would allow the officer to record the contact information for the detained person. We are concerned that this language would facilitate infringement of our clients’ Fourth Amendment right to be free of unlawful searches and seizures. It would be improper for officers to use this well-intentioned and long overdue policy change to violate the warrant requirement and inspect the contents of our clients’ phones in the hopes of finding incriminating evidence.

There is an existing workable model for this procedure at the Red Hook Community Justice Court. There, a detained individual’s personal effects, including their wallet, keys and cell phone, are transported from the 72nd, 76th, and 78th precincts to the courthouse in a manila envelope along with the defendant. While in the pens at Red Hook awaiting arraignments, the individual, with the assistance of court officers, is generally permitted to pull up the contact information for a few individuals to allow them to provide verifiable contact information to the CJA and to the court to make a stronger argument for release on recognizance.

Furthermore, transporting a person’s personal effects in a manila envelope to the courthouse means that a person may then have the means to pay bail with cash or credit card in his wallet. However, even if the person has access to his debit or credit card, under current practice, he cannot actually use the ATM to withdraw money because there are no ATMs located in the pens and staff refuse to escort our clients to the ATM in the courthouse.

Intro No. 1581-2017in relation to requiring the mayor’s office of criminal justice (MOCJ) to post public information regarding posting bail in courtrooms

BDS supports this bill, which would require MOCJ to work with the Office of Court Administration (OCA) to display information regarding posting bail conspicuously in all locations in courthouses. Information shall include how to determine the amount and type of bail ordered and all processes required to post bail, including where and how to post bail.

We recommend providing the public with more information, including the maximum fee that a bondsman can charge and other information about bail bonds to limit the abusive practices that bail bonds agents engage in as a matter of course. Rather than recreating the wheel, in addition to posting clear information about the processes required to post bail in the courthouse, we recommend that MOCJ distribute a resource called “Bail’s Set…What’s Next?” created by the Center for Urban Pedagogy in partnership with the Brooklyn Community Bail Fund.[3]

IV. Additional Action Needed

These bills are an important step in ensuring that people who may be able to pay bail are in fact able to pay bail and avoid unnecessary and harmful pre-trial detention. However, there is still more that we must do if the City is committed to substantially limiting pre-trial detention sufficiently to close Rikers Island.

   a. We must hold DOC accountable if they fail to comply with these proposed laws.

These bills must include a cause of action or sanctions if DOC fails to follow its legislative mandate. Without a consequence, we have little hope for the kind of systematic change that closing Rikers Island requires.

   b. We must hold prosecutors and judges accountable for relying solely on cash bail and commercial bond as forms of relief, even though New York law provides courts other options

The express purpose of bail is to enable the pretrial liberty of all defendants, regardless of their financial means. For this reason, New York Criminal Procedure Law Article 520 authorizes multiple forms of bail other than cash and bond to fulfill its purpose of not conditioning liberty on the defendant’s ability to pay money upfront. Yet New York judges uniformly neglect to consider non-monetary forms of bail. Instead, judges are firmly entrenched in the culture of setting only bond or cash, the two most restrictive forms of bail. The City must work with judges and prosecutors to encourage them to allow for unsecured appearance bonds and other bail alternatives that are actually within a person’s reach.

   c. We must make it possible for a people to pay bail for themselves if they have the money

Practically, if a person can pay bail for herself, she should be able to do so. She therefore needs access to both her wallet (with her credit or debit card and/or cash) and an ATM.

For a person detained in the pens at the courthouse: Currently, a person’s personal effects including wallet, keys, MetroCard (and even critical assistive devices such as canes, walkers and crutches[4]) remain back at the precinct and do not travel with the accused to arraignments. Even if she is allowed to take her debit card with her, staff will not escort her to an ATM while in custody, and there are no ATMs located in the pens. While these bills address the ability of family and friends to pay bail, they do nothing to help people pay their own bail. If the point of bail is to set an amount that a person can actually afford to ensure their return to court, then we must allow people who can pay to do so on their own. Moreover, Unsecured Appearance Bonds, an authorized alternative form of bail that would allow a defendant to be released upon the promise to pay a set amount if he or she does not come back to court, are never ordered, despite the requests and best efforts of public defenders.

People who are already in DOC custody at a DOC facility: People who are incarcerated can pay bail through their commissary account, but if they have a credit card/benefit card in their property with DOC, they cannot access it nor use it themselves to pay their bail.  This becomes a huge obstacle for people who do not have family or community support who can help pay. We recommend that people be allowed to access their personal effects so that they can pay their own bail and be released.

V. Conclusion

These bills demonstrate the Council’s commitment to making our bail system fairer and more just, a critical component to reducing pre-trial detention and ending the horror that is Rikers Island. BDS looks forward to working with the Council to achieve our shared goals. Please do not hesitate to reach out to me with any questions about these or other issues at (718) 254-0700 (ext. 276) or shechinger@bds.org.

[1] People ex rel. McManus v. Horn, 18 N.Y.3d 660 (2012).

[2] Independent Commission on New York City Criminal Justice and Incarceration Reform, A More Just New York City (2017), available at https://static1.squarespace.com/static/577d72ee2e69cfa9dd2b7a5e/t/58f67e6846c3c424ad706463/1492549229112/Lippman+Commission+FINAL+4.18.17+Singles.pdf.

[3] Available at http://welcometocup.org/Store?product_id=141.

[4] See BDS’s June 23, 2016 City Council testimony on access to court facilities for people with disabilities, available at http://bds.org/wp-content/uploads/06.23.2016-BDS-Testimony-City-Council-Committees-on-Disability-Mental-Health-Legal-Services.pdf.

NYASA HICKEY TESTIFIES BEFORE THE NYC COUNCIL JOINT HEARING ON IMMIGRATION

TESTIMONY OF:

 

Nyasa Hickey – Supervising Attorney, Immigration Practice

BROOKLYN DEFENDER SERVICES

 

Presented before

The New York City Council

Committee on Immigration, Committee on Public Safety

and Committee on Education

Joint Hearing on Immigration

 

April 26, 2017

 

Introduction

My name is Nyasa Hickey. I am the supervising attorney of the Padilla Unit and Youth and Communities Project at Brooklyn Defender Services (BDS). I thank the City Council for this opportunity to testify about the nine bills under consideration today.

BDS is the largest legal services provider in Brooklyn, representing low-income New Yorkers who are arrested, charged with abuse or neglect of their children or face deportation in nearly 40,000 cases each year. Since 2009, BDS’s immigration practice has counseled, advised or represented more than 7,500 immigrant clients. We have been a proud New York Immigrant Family Unity Project (NYIFUP) provider since the program’s inception.

New York City, and in particular, the City Council, has been a leader in the protection of non-citizen residents. We strongly support the sentiment behind these bills. They recognize the enormous threat that immigrant communities face in an era of increased surveillance and enforcement. The City can and should do more to ensure that residents are not unnecessarily targeted for detention or deportation because of some action or failure to act by the City. These bills are an important step towards increasing the reach of Sanctuary City policies. We also articulate additional ways that the City can expand the proposed bills to demonstrate its commitment to being a Sanctuary City.

Bills

  1. 1568 – City Resources Bill, introduced by Council Members Espinal, Johnson and the Speaker

Brooklyn Defender Services supports this bill. The bill makes clear that city officers and employees shall not accept requests by federal law enforcement agencies to support or assist in operations primarily in furtherance of federal immigration enforcement and that no city resources shall be used for such efforts.

  1. City Property Bill, introduced by Council Members Menchaca, Johnson and the Speaker

BDS supports this bill. The bill restricts immigration law enforcement’s access without a judicial warrant to city property. The bill also requires the Mayor’s Office of Immigrant Affairs to create signage to inform the public of their rights with respect to federal immigration enforcement.

  1. 1569 – Disorderly behavior bill, introduced by Council Members Gibson, Lancman, and the Speaker

BDS supports this bill. This bill creates a new disorderly conduct offense, which would be considered an infraction under federal law, unlike the New York Penal Law 240.20, disorderly conduct, which is sometimes treated as a criminal conviction under federal immigration law.

  1. DOE Undocumented Students Information Bill, introduced by Council Members Dromm, Menchaca, Ferreras-Copeland and the Speaker

BDS supports this bill. The bill requires the Department of Education (DOE) to provide biannual notices to City students and their families in plain language about their rights to prevent the disclosure of certain information as well as other rights pertaining to public education regardless of immigration status, the right to refuse to speak to federal immigration authorities, and the right to apply for certain immigration benefits. In addition, the notices will state the DOE policy regarding interactions with federal immigration authorities and protocols for detention of a parent by federal immigration authorities.

  1. EO bill on Identifying Information, introduced by Council Members Williams, the Speaker (Council Member Mark-Viverito), Espinal and Ferreras-Copeland

BDS supports this bill. The bill codifies and strengthens Executive Order 41 and aims to protect the disclosure of personal identifying information that could be used for purposes contrary to the City’s interests.

Our main feedback is that the bill it is fairly detailed and may, as written, be difficult for agencies to interpret and follow. Without offering specific suggestions, we recommend editing the bill to be more simple and shorter, if possible, to facilitate compliance.

  1. Identifying Information Division bill, introduced by the Speaker

BDS supports this bill. The bill creates an identifying information division within the City law department to ensure the city’s data retention policies do not place immigrants at risk or hinder immigrants’ access to City services. The identifying information division also centralizes the review of all disclosures of info to federal immigration authority, which imposes bureaucratic hurdles to such disclosure and ensures some level of uniform enforcement of rules.

  1. MOIA Expansion Bill, introduced by Council Members Dromm, Rodriguez and the Speaker

BDS supports this bill, which would expand the powers and authority of the Mayor’s Office of Immigrant Affairs.

  1. 1578 – MOIA Task Force Bill, introduced by introduced by Council Members Menchaca, Dromm, Williams and the Speaker

BDS supports this bill, which would create an interagency task force to review compliance with the new bills, the detainer law, and ongoing developments in state and federal law.

  1. 1558 – Probation and ICE bill, introduced by the Speaker and Council Member Ferreras-Copeland

BDS supports this bill. The bill applies the DOC detainer law to the Department of Probation, ensuring that the DOP’s resources are allocated for appropriate purposes in accordance with the City’s interests.  However, BDS recommends expanding the scope of the reporting requirements in relation to concerns we will articulate in the subsequent section.

  • Recommended Additions to the Proposed Bills
  1. Expand Identifying Information Division authority to include the Department of Correction (DOC), the New York Police Department (NYPD), and Department of Probation (DOP).

As of April 2, 2017, ICE is utilizing a new immigration detainer form, Form I-247A (Immigration Detainer—Notice of Action). The previously used forms I-247D (Immigration Detainer—Request for Voluntary Action) and I-247N (Request for Voluntary Notification of Release of Suspected Priority Alien) and Form I-247X (Request for Voluntary Transfer) are no longer being issued.  As a result, detainer requests and requests for notification are now encompassed on one form, whereas previously they were issued on two separate forms.  In addition, according to Policy Memo No. 10074.2 issued on March 24, 2017, the new form I-247A must be accompanied by a civil immigration warrant in the form of I-200 or I-205.

In the past couple of weeks two BDS clients have been arrested by ICE agents at Rikers Island and transferred to immigration custody.  BDS believes that in both cases, DOC notified ICE about the individuals pending release pursuant to a request for notification and ICE arrested and detained the individuals directly at Rikers Island.  BDS attorneys, appointed by the criminal court to represent these two individuals, were not informed by DOC about the request for notification of the person’s release to ICE. Instead, upon our inquiry before each client’s anticipated release date from DOC custody, we were informed that the individual was to be released pursuant to the DOC detainer law.  Subsequently, BDS was not informed about the release of the individual to ICE custody directly from DOC custody.

In neither instance was BDS provided with a copy of the detainer or request for notification to determine whether or not it was lawful or accurate. Finally, we were not provided sufficient information about who within the Department makes the ultimate determination to release our clients to ICE, or notify ICE of pending release of our client and under what authority that determination is based.  These two recent arrests appear to reflect a change in the Department’s interpretation or implementation of the restrictions under the NYC DOC detainer law or, in the alternative, it reflects an increase in federal immigration enforcement and consequent interaction with DOC.

Accordingly, there is an urgent need for transparency about the DOC’s internal detainer and request for notification compliance policy. Defense counsel’s job is to hold the government to its constitutional and statutory obligations. We cannot fulfill our duties as defense counsel to help protect New Yorkers if we are not provided with the appropriate information.[1]  Defense counsel and affected individuals in the City’s custody must be informed in advance about the existence of a detainer or request for notification (the I-247A form), the alleged basis of that detainer and the City’s determination about whether or not the detainer or request for notification will be fulfilled.

To ensure that all New Yorkers in the City’s custody receive due process and sufficient legal advice before transfer to immigration custody, we request the City Council legislate the following:

  • Defendants and defense counsel should be notified immediately if there is a detainer or a request for notification from ICE to NYPD, DOC or probation.
  • Defendants and their counsel must be provided with a copy of the detainer, request for notification and any accompanying information issued by federal law enforcement.
  • The NYC departments of police, correction, and probation shall be subject to the advice, review, and disclosure requirements of the proposed “identifying information division” bill.
  • The NYC departments of police, correction, and probation should publish on their website and share with the Council its policy for complying with detainers and requests for information from federal law enforcement. The policy should articulate the chain of command for the decision making process, including a final decision maker and point person for individuals and defense counsel to contact in the law department in the identifying information division.
  • The reporting requirements for NYPD, DOC and DOP should include the reporting and notification to affected individuals requirements specified in the “identifying agency” bill. Similarly, the reporting requirements in the proposed probation bill should include reporting of requests for notification and transfer of individuals to ICE custody pursuant to a request for notification.
  • Additionally, reporting requirements for DOC, NYPD, and DOP should be expanded to include requests for notification received, requests for notification fulfilled, and transfer to ICE custody from the City’s custody, regardless of whether or not an individual was held beyond the time he would otherwise be held pursuant to a detainer. Specifically, they should be required to report annually:
    • How many times NYPD called ICE or federal immigration enforcement to verify a NCIC hit for an individual in NYPD custody;
    • How many times ICE was called about a person in DOC custody to verify or request information;
    • How many times ICE picked up an individual within DOC custody—how many times an individual in DOC custody was released to ICE custody;
    • How many times NYPD called ICE to notify about an individual who falls within the “violent or serious felony conviction” definition under NYPD detainer law;
    • How many times DOC called ICE to notify about an individual who falls within the “violent or serious felony conviction” definition under DOC detainer law;
    • How many times DOC and NYPD received a I-247A form from federal authorities.

These amendments would go a long way to ensuring transparency and accountability for these agencies that deal with New Yorkers accused or convicted of crimes, a group highly vulnerable to immigration enforcement.

  1. Implement training and compliance enforcement mechanisms for the proposed and existing bills, including Local Law Administrative Code 9-131 and § 14-154.

To ensure that all City agencies and employees, including NYPD, DOC and probation, understand their obligations and requirements under existing and proposed legislation, we request that the City mandate training and create compliance mechanisms.

For example, in some instances it appears that NYPD is communicating information about defendants’ whereabouts to immigration enforcement authorities when they call for verification of National Crime Information Center (NCIC) information. While some have attributed these instances to rogue NYPD officers, the resulting courthouse arrests strongly suggest that NYPD requires additional training on how to comply with the detainer law. Similarly, based on our conversations with various DOC staff, there is definite confusion among department staff about whether an ICE detainer (or warrant) will be honored, as well as confusion about the difference between an ICE administrative warrant, an ICE detainer, an ICE hold, and a federal judicial warrant.  This confusion has resulted in difficulty in posting bail and other delays in our client’s release from DOC custody.

In short, the need for training of the people who will be called on to implement these laws is acute. Experience shows that a lack of training can lead to ICE arrests, deportations and greater fear and uncertainty among immigrant communities: exactly the opposite result of what the proposed legislation seeks to achieve. The need for regular and consistent training is greatest for NYPD, DOC and DOP employees who regularly interface with federal authorities as a component of their day-to-day responsibilities. The City can achieve the stated goals of these bills, help to ameliorate harm to immigrant communities, and provide City employees who are dedicated to serving New York residents with the tools they need to carry out the letter and the spirit of the law, but only if we ensure proper training of employees on the frontline.

Further actions towards ending Broken Windows policing

BDS wants to applaud the City for long-standing efforts to roll back broken windows policing and to lower arrest numbers. This policy shift likely saved countless people from unnecessary immigration enforcement and other devastating collateral consequences like criminal convictions, mass incarceration, homelessness, child welfare involvement and diminished employment opportunities.

As the Council already knows, NYPD’s policy is to fingerprint anyone who is arrested, even if only for a low-level offense like fare evasion. Some police armed with tablets are even fingerprinting people in their neighborhoods, without even making an arrest that leads to a trip to the precinct and processing at Central Booking.[2] Fingerprints collected by the NYPD are transmitted to the FBI, who in turn can share them with the Department of Homeland Security, potentially leading to an arrest by ICE and deportation. Even if a district attorney declines to press charges, an immigrant is put at immediate risk of being found by ICE. Broken windows policing, or the criminalization of the most minor offenses, even without a resulting conviction, thus directly sends thousands of immigrants and their fingerprints to the federal government every year.

Over the past three years, the BDS immigration practice has represented dozens of detained clients in deportation proceedings for underlying “crimes” like possession of small amounts of marijuana, turnstile jumping, and possession of “gravity knives” (really work tools carried by laborers, often required by their union contracts, and purchased legally at major retailers like Home Depot).  Many of these clients are legal permanent residents who had been living in the U.S. for dozens of years with these minor convictions on their record before they were swept up by ICE.

New York is safer than it has ever been, in part because of the City’s step away from the mass criminalization of communities of color in an effort to build trust between neighborhoods, residents and the city agencies that serve them. However, the Council must remain committed to continuing to roll back Broken Windows policing. We can further limit the flow of the arrest-to-deportation pipeline by continuing efforts to eliminate arrests for low-level behavior in the first instance so that a person’s fingerprints are never uploaded to the FBI database.

We call upon the Council to continue working with the Mayor’s office and the NYPD, with the goal of functionally eliminating arrests for quality of life crimes. We can improve the quality of our communities without fingerprinting people and stigmatizing them with a criminal record if they cannot afford to pay their subway fare or if they ride their bicycle on a sidewalk. An end to Broken Windows makes all of New York’s communities stronger, including immigrant communities.

Conclusion

The bills before the Council today are important steps to ensuring that New York City is a sanctuary for all of its residents, including non-citizens. We call on the Council to remain committed to protecting the rights of New Yorkers is by ending Broken Windows policing, removing ICE from our courthouses, shelters and other city buildings, and providing immigrant communities with education, increased funding for legal counsel and support.

If you have any questions about my testimony, please feel free to contact me at nhickey@bds.org or 718-254-0700 ext. 230.

[1] A related problem is that judges and District Attorney’s offices are no longer turning over the NCIC to defense attorneys in arraignment along with the defendant’s RAP sheet. Until a few weeks ago, the NCIC, which listed any immigration holds or prior deportation orders, were turned over as a matter of course to defense counsel as a part of the RAP sheet. The recent withholding of this information, seemingly at the behest of the feds, severely limits defense counsel’s ability to properly advocate for our clients at arraignment on matters of bail and whether or not to accept an immediate disposition in the case. We are working with OCA and other court stakeholders to challenge this new decision, but wanted to raise this to the Council as another very recent change in federal policy that is impacting City actors and harming immigrant New Yorkers and their communities.

[2] Tatiana Schlossberg, New York City Police to Be Equipped with Smartphones and Tablets, N.Y. Times, Oct. 24, 2014, available at https://www.nytimes.com/2014/10/24/nyregion/new-york-city-police-to-be-equipped-with-smartphones-and-tablets.html.

DIRECTOR OF CIVIL JUSTICE PRACTICE SERGIO JIMENEZ TESTIFIES BEFORE THE NYC COUNCIL COMMITTEE ON PUBLIC HOUSING

 Sergio Jimenez – Director, Civil Justice Practice

BROOKLYN DEFENDER SERVICES

Presented before

The New York City Council Committees on Public Housing and Oversight & Investigations

Oversight Hearing Examining DOI’s Report on NYCHA’s Permanent Exclusion Policy

April 24, 2017

I. Introduction

My name is Sergio Jimenez and I am the Director of the Civil Justice Practice at Brooklyn Defender Services (BDS). Our organization provides multi-disciplinary, and client-centered criminal defense, family defense, immigration, civil legal services, social work support and advocacy in nearly 40,000 cases involving indigent Brooklyn residents every year. I thank the New York City Council Committees on Public Housing and Oversight & Investigations, and in particular Chairs Ritchie Torres and Vincent Gentile, for the opportunity to testify on DOI’s investigation of New York City Housing Authority’s (NYCHA) Permanent Exclusion policy and Councilmember Gibson’s reporting legislation.

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NYASA HICKEY TESTIFIES BEFORE NYC COUNCIL BUDGET HEARING ON IMMIGRATION

TESTIMONY OF:

Nyasa Hickey – Supervising Attorney, Immigration Practice

BROOKLYN DEFENDER SERVICES

Presented before

The New York City Council

Budget Hearing on Immigration

March 22, 2017

  1. Introduction

My name is Nyasa Hickey. I am the supervising attorney of the Padilla Unit and Youth and Communities Project at Brooklyn Defender Services (BDS). I thank the City Council for this opportunity to testify about the impact of increased immigration enforcement and the need for significantly increased funding in order to meet the needs of the communities we serve.

BDS is the largest legal services provider in Brooklyn, representing nearly 40,000 low-income New Yorkers each year who are arrested, charged with abuse or neglect of their children or face deportation. Since 2009, BDS has counseled, advised or represented more than 7,500 immigrant clients. In 2016 alone, we handled more than 1500 immigration matters across a full spectrum of services. Our immigration practice is composed of 17 full-time immigration attorneys, two law graduates, five paralegals accredited by the Board of Immigration Appeals, one full-time and one part time social worker, two legal assistants and two Immigrant Justice Corp Legal Fellows representing more than 1,000 immigrant New Yorkers every year. We are a Board of Immigration Appeals-recognized legal service provider.

Our three immigration practice areas include:

  • The BDS Padilla Unit advises BDS’s criminal defense attorneys and their noncitizen clients on the immigration consequences of guilty pleas to help avoid or minimize negative immigration consequences. About a quarter of BDS’s 35,000 criminal defense clients are foreign-born, roughly half of whom are not naturalized citizens and therefore at risk of deportation or loss of opportunity to obtain lawful immigration status as a result of their criminal case. Our six criminal-immigration specialists provide support and expertise on more than 1000 cases that survive arraignment involving non-citizen clients and our Padilla specialists are called at least once, and often multiple times, in each arraignment shift to advise on the ramification of a plea offer at arraignment.
  • The New York Immigrant Family Unity Project (NYIFUP) is New York City’s groundbreaking, first-in-the nation program providing quality counsel to immigrant New Yorkers who are detained and facing deportation and separation from their families and communities. BDS is proud to be a NYIFUP provider, along with The Bronx Defenders (BXD) and The Legal Aid Society (LAS). Since the project’s inception three years ago, BDS NYIFUP attorneys have defended more than 700 people in deportation proceedings. As of December 2015, 52 percent of pilot clients have been reunited with their families. NYIFUP attorneys have won 71 percent of their trials. NYIFUP is projected to increase the percentage of immigrants who will win the right to remain in the United States by 1,000 percent, compared with prior success rates for detained, unrepresented immigrants.
  • BDS’s Immigrant Youth and Communities Project has represented thousands of Brooklyn immigrants in their applications for lawful immigration status and in defending against deportation in non-detained removal proceedings. Highlights of our work include assisting more than 320 young clients in their pursuit of Special Immigrant Juvenile Status (SIJS), Adjustment of Status, U visas, Deferred Action for Childhood Arrivals (DACA) and other immigration benefits or removal defense, and assisting more than 1,000 Haitian New Yorkers with their applications for Temporary Protected Status, work authorization, and other immigration benefits or removal defense.
  1. Client Stories

The following three client stories[1] illustrates how coordination between all of BDS’ practice areas is critical for protecting immigrant New Yorkers from deportation and its attendant collateral consequences. Public defender offices like BDS are uniquely situated to advocate for New Yorkers whose criminal or family court involvement threatens their ability to modify their immigration status and lawfully remain in New York with their children and families.

Our civil justice team helps mitigate collateral consequences for NYIFUP clients.

Ray Browning is a permanent resident who has called Crown Heights, Brooklyn home since he was seven years old and had never returned to Guyana, where he was born. Immigration and Customs Enforcement (ICE) detained him outside his home and charged him as deportable based on a single 17-year old non-violent offense for which he had served 30 days in jail.  Mr. Browning has a close-knit and loving family that includes his adult siblings and his U.S. citizen fiancée and stepdaughter, all of whom depended on him financially and emotionally. His detention devastated him and his family, and his fiancée was served an eviction notice when she fell behind on her rent. Mr. Browning was assigned a NYIFUP attorney who was able to harness the family’s strong support to litigate his case as fast as possible when the judge appeared sympathetic to the case. His NYIFUP attorney collaborated with a Padilla attorney to investigate potential avenues of relief and prepare for trial. His NYIFUP attorney accepted an expedited trial date, prepared a large evidence submission in under two weeks, prepared the client and witnesses on the weekend, and won the client’s case less than a month after his first court appearance, allowing Mr. Browning to reunite with his family for Thanksgiving. In addition, our civil justice team worked with Mr. Browning’s fiancée to avoid eviction and clear the arrears that accumulated when Mr. Browning was detained and unable to help pay the rent. Mr. Browning and his family were able to remain in their home and Mr. Browning is now back at his job so that he can support his family.

Our family defense practice is an invaluable resource for our clients who are facing loss of their children because of immigration detention.

BDS first represented Larry Lewis in a misdemeanor criminal case in 2012. Mr. Lewis is originally from the Caribbean and has been a lawful permanent resident (LPR) of the U.S. for nearly thirty years. Our Padilla team worked with his criminal defense attorney to ensure a plea that would not further threaten his immigration status. Nonetheless, ICE detained Mr. Lewis at the conclusion of his criminal case because of two twenty-year-old misdemeanor convictions that made him deportable. After negotiating with ICE attorneys, Mr. Lewis’s BDS Padilla attorney obtained bond and his release from detention. Yet while Mr. Lewis had been incarcerated, his children had been placed in foster care. BDS’s Family Defense Practice stepped in as assigned counsel to ensure that Mr. Lewis could obtain visitation with his children and maintain their loving relationship. While out on bond, Mr. Lewis’s Padilla attorney began preparing for a 212(c) waiver application (a special immigration waiver for LPRs whose prior deportable convictions are from 1997 or earlier) and impending trial before the Immigration Court. Immigration judges have discretion to issue the relief and therefore, the waiver application requires the LPR to present sufficient positive equities to outweigh negative factors. Thanks to a BDS immigration practice social worker, Mr. Lewis’ case grew stronger with a report demonstrating his good character and positive relationship with his children. Fortunately for Mr. Lewis and his family, his Padilla attorney was able to show the judge that Mr. Lewis warranted the grant of the waiver. The judge’s approval of the 212(c) waiver allows Mr. Lewis to remain in the U.S. with his family and maintain his status as lawful permanent resident.

Another BDS client was able to avoid deportation because of our “Padilla plus” assistance.

Maria Lodi came to the U.S. as a teenager and is now a CUNY graduate with a bachelor’s degree in science and the mother of two USC children, including one child who is severely autistic and non-verbal. She fled her native Nigeria where she faced terrible stigma and persecution related to her mental illness. Once in the U.S., she filed an asylum claim, but was denied because at that time mental illness was not a cognizable reason for relief and an immigration judge order her removed. In 2012, she came to BDS for a misdemeanor charge that stemmed from her mental illness and the stress of caring for her two sons. Our Padilla team worked with her criminal defense attorney to ensure an immigration-safe disposition. We also realized that she had a pending DACA application while the criminal case was ongoing. We amended the DACA application to address the arrest and disposition and her DACA was granted. Ms. Lodi then married a U.S. citizen, so we filed a motion to reopen the order of removal and negotiated a termination of the proceedings for adjustment. During the pendency of the adjustment application, Ms. Lodi was hospitalized twice due to mental health breakdowns. Both times, the BDS team appeared at her civil commitment hearing and ultimately helped her to be released from the hospital and properly prepped in time for her adjustment interview. The adjustment application was granted and in January of 2017 she was granted a green card.

While hundreds of our Padilla clients have the potential to modify their status, we are unable to take on the majority of their cases because we lack the capacity. Cases like Ms. Lodi’s last for many years and may require significant resources, as her story shows. It is critical that the City fund immigration cases for people caught in the “justice trap” – to ensure that our community members can modify their status, remaining in their homes and with their families and precluding the collateral consequences we saw in Mr. Browning and Mr. Lewis’s cases. Public defenders can take on and often favorably resolve the cases that other organizations cannot, cases that pose extra challenges because of the client’s criminal court or family court involvement; cases that are now a priority for deportation under the new immigration enforcement scheme.

  • The Effect of Increased Enforcement on our Immigration Practice

The need for City support of immigration legal services has never been more acute. The President’s Executive Order upends the prior enforcement priorities for undocumented people and people with legal immigration status alike. It used to be that some immigrants who were convicted of minor crimes were not deemed enforcement priorities.  In addition, non-citizens were not considered priorities just by virtue of having been accused of a crime. After the new executive order, anyone with any criminal history or open charge is a priority, as well as anyone who has committed acts that constitute a chargeable criminal offense.

The recent change in rhetoric and enforcement has sown fear and confusion in our immigrant clients and impacted all three of our immigration practice areas.

Criminal defense/Padilla unit:

NYPD fingerprinting and Broken Windows policy leads ICE directly to our clients

NYPD’s policy is to fingerprint anyone who is arrested, even if only for a low-level offense like fare evasion. Some police armed with tablets are even fingerprinting people in their neighborhoods, without even making an arrest that leads to a trip to the precinct and processing at Central Booking.[2] Fingerprints collected by the NYPD are transmitted to the FBI, who in turn can share them with the Department of Homeland Security, potentially leading to an arrest by ICE and deportation. Even if a district attorney declines to press charges, an immigrant is put at immediate risk of being found by ICE. Broken windows policing, or the criminalization of the most minor offenses, even without a resulting conviction, thus directly sends thousands of immigrants and their fingerprints to the federal government every year.

Over the past three years, the BDS immigration practice has represented dozens of detained clients in deportation proceedings for underlying “crimes” like possession of small amounts of marijuana, turnstile jumping, and possession of “gravity knives” (really work tools carried by laborers, often required by their union contracts, and purchased legally at major retailers like Home Depot).  Many of these clients are legal permanent residents who had been living in the U.S. for dozens of years with these minor convictions on their record before they were swept up by ICE.

Once in court, we are far more limited in our ability to provide Padilla advice to non-citizen clients.

The current state of affairs endangers our ability to provide effective counsel under the standard articulated in Padilla v. Kentucky. In 2010, the U.S. Supreme Court held in Padilla that the Sixth Amendment requires criminal defense counsel to provide affirmative, competent advice to a noncitizen defendant regarding the immigration consequences of a guilty plea.[3] One in four of BDS’s criminal defense clients are not U.S. citizens and, under the president’s new enforcement priorities, they are all now priorities for deportation by virtue of having been arrested.

ICE regularly arrested our clients in Brooklyn courtrooms in recent years but as a result of anti-immigrant rhetoric and broad enforcement against immigrant communities, courthouse arrests are receiving much more media attention in 2017.  The vulnerability of our non-citizens clients in court settings instills fear in our clients, thus making them even more reluctant to appear in court to deal with their ongoing criminal case. The burgeoning fear of increased use of courthouse arrests is particularly troubling because our clients cannot modify their immigration status if they have an open criminal case, and they cannot resolve their criminal or family case if they fail to appear in court.

Our internal records indicate more than one dozen BDS clients have been arrested in Brooklyn courthouses and taken into ICE custody in the past four years. A BDS client from Guatemala had the story of her courthouse arrest chronicled in the N.Y. Times in 2014.[4] Most recently, in November 2016, a criminal defense client who was receiving treatment services through the Brooklyn Mental Health Court was arrested by ICE in the hallway of Brooklyn Supreme Court while he waited with his attorney for his case to be called. Our client had been reporting regularly to the criminal court for the past six months in accordance with his mental health court treatment plan. Our client has mental health diagnoses and had been hospitalized just prior to his ICE arrest in relation to his diagnoses.

Federal Immigration Court

Rising caseloads

This month, the immigration docket at the federal courthouse at Varick Street added a third intake day, increasing our monthly intake by 50% (up to 90 cases per month across all NYIFUP providers from a previous 60 cases per month). The courts are moving so quickly with cases that we cannot pick up cases fast enough. If intake numbers remain constant as they are now for the rest of the fiscal year, we will exceed our case target numbers by 180 to 250 cases by July 2017. And so far, these are cases that were brought into the system during the Obama administration. We have not yet seen the people who were arrested by ICE after President Trump took over. The third intake day is already exceeding our capacity to serve our existing clients, yet we expect further increased caseloads as we begin to see the results of the new enforcement priorities.

To make matters worse, not only are we seeing more cases, but we see that ICE has become harsher towards our clients than they were even just last year.

Asylum seekers no longer being released on bond

For existing cases, we are seeing decreases in the use of prosecutorial discretion and discretionary release. Before last week, we had not had an asylum seeker released on bond in more than six weeks. It appears that the White House’s January 25 executive order on border enforcement had the effect of ICE refusing to release detained asylum seekers even where they had passed an initial screening interview and had a sponsor or family member with lawful status ready to house and support them. We have had a few releases since starting to file federal habeas corpus litigation against this practice, but remain concerned that going forward ICE’s default will be to detain everyone, including asylum seekers, parents, and victims of violence and trauma, and to fight release however we seek it.

  • ICE targeting people who won relief but have not yet received their visas or green cards

We are also seeing that NYIFUP clients who have been granted relief but have not yet received their green cards are being sought out by ICE and re-arrested. For example, we represent a 16-year-old client from Central America who has an approved Special Immigrant Juvenile Status (SIJS) application who was arrested by the ICE gang unit and is now is secure detention. While his SIJS application was approved, he has not yet received his visa number from USCIS. It is unclear to us why he was taking into detention by ICE, as he was not arrested by the NYPD or did not try to re-enter the U.S., two reasons that people are sometimes re-detained after release

Arrests in the courthouses

 

Our immigration clients, like our criminal defense clients, are scared to go to court. ICE agents now roam the hallways and last fall we often observed ICE agents arresting people in the courts. This was uncommon in recent years. For example, we represent a client who was re-detained by ICE when he appeared for an immigration court date last year. How can we adequately counsel our clients about the importance of attending their immigration court appearances to fight against deportation when they face the threat of coercive immigration detention every time they enter the courthouse doors?

ICE OSUP check-ins

In some cases, ICE may decide not to execute a final removal order and might instead issue an “Order of Supervision,” or OSUP. A “post-order-of-removal” Order of Supervision may be issued under limited circumstances, such as when ICE determines the individual cannot be removed due to his or her country’s refusal to accept them, or when it is otherwise impracticable or contrary to the public interest to remove the individual. An Order of Supervision is considered to be a “humanitarian act” on the part of ICE, and may be available if the non-citizen is the primary care giver to a child with a medical condition, or if they themselves are receiving medical treatment for a serious condition, etc. The Order of Supervision will direct the non-citizen to appear at regular ICE check-ins, usually every few months and at least once a year.

Our clients who have been attending regular OSUP check-ins for years are now terrified to appear before ICE. One of our NYIFUP clients who was released from detention because he had a heart attack while in custody was recently hospitalized because of the stress and fear of deportation. Clients who previously checked in once or twice a year are now being asked to return in a couple of weeks or a month with their passports, ostensibly to facilitate deportation.

Our attorneys and office staff who are already overworked are doing their best to accompany our clients to OSUP check-ins, but we simply do not have the capacity to meet the need and quell the well-founded fears of our clients and threats of detention and deportation.

In the Community

Clamoring for Know Your Rights

Since the presidential election last fall, our office has received increasing requests from the community to present Know Your Rights trainings to the community. Since the first immigration Executive Order was announced we are now receiving near daily requests for assistance from elected officials, community-based organizations, city agencies, religious institutions and the press. We are doing our best to meet the demand, but regularly have to turn down requests because we do not have the capacity.

Daily Calls from Current and Former Clients

All of our attorneys and paralegals have seen a huge increase of panicked calls from our clients, current and former, about what to do if ICE is at their door, whether or not they can travel, what they should be doing with their US citizen children, whether they should appear in court, requesting immigration legal services for their loved ones, and more.

In short, our communities are crisis and need the support of legal service providers more than ever. We want to continue to support all of our former and current clients, as well as serve more people, but our capacity is limited by the resources currently available to us.

Increased Need for FY2018

 NYIFUP

NYIFUP attorneys have never been more important. We are a human shield for our clients, doing everything in our power to show them compassion in a system that increasingly views our clients as deportable others – “criminals” or “aliens” with rights that can and are regularly trampled on. Even when we lose our client’s case, we provide them with the opportunity to share their story with the prosecutor and judge and make the case why they deserve to remain in this city with their family and community.

Furthermore, NYIFUP has created a sea change in improved outcomes for detained immigrants. Prior to NYIFUP, a meager 3% of unrepresented detained immigrants won their removal cases.  During the NYIFUP study period, over 30% of NYIFUP clients won their removal cases.  Meaning that for every ten individuals who NYIFUP spares from deportation, nine would have been deported without NYIFUP. We know from the NYIRS study that release is a huge factor in ultimate success and that the financial and human benefits of being able to reunite families are unquestionable.  Thus, it is critically important that NYIFUP wins release for approximately 30% of its clients as compared to only 14% of unrepresented immigrants who were able to win release prior to NYIFUP.

The Council’s commitment to universal representation for every detained person who meets the income requirements of NYIFUP is critical to ensure that every person who comes before immigration court in New York City is afforded the right to make their case, no matter their background. We have had cases with clients convicted of crimes that we later successfully vacated because they were innocent or wrongly charged. By building trust and rapport with our clients, many of whom are survivors of incredible violence and trauma back in their home countries, we investigate and present evidence about why our clients’ “criminal acts” are often the direct result of the trauma they have suffered. We have uncovered that many clients were actually U.S. citizens, but often never had the resources or tools to find the evidence to prove their citizenship until they were appointed a NYIFUP attorney. NYIFUP is the strongest example of our City’s commitment to immigrant New Yorkers, made stronger still by your commitment to universal representation – the belief that all people are worthy of representation.

This year, City-wide NYIFUP providers are jointly asking for a significant increase in funding so that we can continue to provide superior legal representation to detained people facing deportation in New York City. Since the pilot program’s inception in 2013, we have had to limit the parameters of the program because we have not had the capacity to serve all of the detained people who appear at intake in Varick Street. We fear that the numbers of New Yorkers requiring detained deportation defense services will jump significantly in the months to come based on increased intake numbers since the new federal administration took office in January. This is our highest priority, as NYIFUP attorneys, social workers and paralegals are already working beyond capacity in the courts and the communities to quell fear and provide legal advice to people rightfully fearful of deportation.

The NYIFUP Coalition jointly requests $12,000,000 to fully fund the New York Immigrant Family Unity Project in FY2018 to ensure that every detained New Yorker has legal representation when facing deportation.

Continuous representation for Padilla client stuck in the justice trap

More than 20% of our criminal defense clients were born outside of the U.S. We meet and exceed the obligations required by the U.S. Constitution under Padilla, however we are not able to provide Padilla representation plus further immigration representation to all of the non-citizen clients whose immigration status is affected because they are caught in the justice trap. Many non-citizen clients who we represent in criminal or family defense cases would benefit from our continuous representation in affirmative or defensive immigration cases, including clients that may have straightforward applications that are complicated merely on the basis of an arrest or justice system involvement.

Last year, in 2016, we were able to provide these Padilla plus integrated immigration services to 216 clients referred to my team from other practice areas. We believe that we have double that number of clients who could benefit from Padilla plus additional immigration services, if not more. Indeed, we used to have a waitlist for these services but no longer keep one because, unless a case is an emergency, we do not have the capacity to take on additional representation.

The most efficient way for the City to fund immigration legal services for people with criminal and family court involvement is to fund continuous representation for Padilla clients through the criminal and family defense contracts negotiated and administered by the Mayor’s Office of Criminal Justice (MOCJ). As noted above, we are unable to serve hundreds of non-citizen justice trapped clients who come through our doors every year because we do not have the in-house resources to help all of our clients address their unique immigration needs.

The Padilla plus integrated immigration services that we did last year was funded jointly by Immigrant Justice Corp, the New York State Office of Indigent Legal Services, the federally funded Community Service Block Grant administered by HRA, and City Council. First of all, these funding sources each have their own limitations and, like all of the service providers here today, we spend a significant amount of time applying for and reporting on various small funding sources. Instead, if we are able to negotiate Padilla plus integrated immigration services into our MOCJ defender contracts as critical to minimizing collateral consequences in the same way that social workers and housing attorneys are, we will be better able to serve our clients stuck in the justice trap and maintain a continuity of representation that is impossible with year-to-year funding streams.

Immigrant Opportunities Initiative (IOI)

Even if the Mayor’s Office of Criminal Justice does not fund Padilla plus integrated immigration services representation through our criminal and family defense contracts, the City Council and the Mayor can demonstrate their commitment to untangling immigrant New Yorkers from the cycle of the justice trap by granting our request for IOI funds.

This year Brooklyn Defender Services requests $200,000 for our Immigrant Youth and Communities Project to provide immigration legal services to low-income Brooklyn youth and adults. With IOI funding, BDS can maintain and grow our Project staff to provide community education, legal screening, advice and full representation to low-income Brooklyn immigrant youth and adults borough wide, in their pursuit of affirmative immigration benefits such as citizenship, lawful permanent residence, asylum, Special Immigrant Juvenile Status, special trafficking and victims’ visas, VAWA relief, TPS, and DACA, and in their defense against deportation in non-detained deportation proceedings. Over the past few months, our office has received increasing requests from the community to present Know Your Rights trainings, immigrant family emergency preparation guidance and free legal services to the community. Yet since the first immigration Executive Order was announced we are now receiving near daily requests for assistance from elected officials, community-based organizations, city agencies, religious institutions and the press. We want to increase our capacity to serve New York’s diverse immigrant communities, but we require a significant increase in funding to allow us to take on even more cases outside of our criminal, family and deportation defense caseloads.

We ask that the Council support our IOI ask of $200,000 to expand our ability to provide integrated immigration legal services to our criminal and family defense clients caught in the justice trap and to provide Know Your Rights trainings and legal screenings to low-income New Yorkers.

Conclusion

We believe that New York can truly become a sanctuary city, but we require significantly more funding if we are to serve the influx of community members who are already desperate for free legal services, must less the thousands more who will need our support if current enforcement trends continue. The way to help protect the rights of New Yorkers is by ending Broken Windows policing, removing ICE from our courthouses, shelters and other city buildings, and providing immigrant communities with education, legal counsel and support. BDS works to support immigrants and their families and communities every day, but the need for our services and the services provided by the dozens of other legal service providers and grassroots organizations is more acute than ever. We hope that you will support our budget asks and enable us to continue to ensure the best possible outcomes for our most vulnerable clients and their families.

[1] All names have been changed to protect our clients’ identities.

[2] Tatiana Schlossberg, New York City Police to Be Equipped with Smartphones and Tablets, N.Y. Times, Oct. 24, 2014, available at https://www.nytimes.com/2014/10/24/nyregion/new-york-city-police-to-be-equipped-with-smartphones-and-tablets.html.

[3] Padilla v. Commonwealth of Kentucky, 559 U.S. 356 (2010).

[4] Kirk Semple, Advocates Seek to Make Courthouses Off Limits for Immigration Officials, N.Y. Times, May 26, 2014, available at https://www.nytimes.com/2014/05/27/nyregion/advocates-seek-to-make-courthouses-off-limits-for-immigration-officials.html.

BDS IMMIGRATION SUPERVISING ATTORNEY ANDREA SAENZ TESTIFIES BEFORE NYC COUNCIL COMMITTEE ON IMMIGRATION

TESTIMONY OF:

 Andrea Sáenz – Supervising Attorney, Immigration Practice

BROOKLYN DEFENDER SERVICES

 

Presented before

The New York City Council

Committee on Immigration

Oversight Hearing: The Impact of New Immigration

Enforcement Tactics on Access to Justice and Services

March 15, 2017

  1. Introduction

My name is Andrea Sáenz. I am the supervising attorney of the New York Immigrant Family Unity Project (NYIFUP) at Brooklyn Defender Services (BDS). NYIFUP is New York City’s groundbreaking, first-in-the nation program providing quality counsel to immigrant New Yorkers who are detained and facing deportation and separation from their families and communities. I thank the City Council Committee on Immigration, and in particular Chair Menchaca, for this opportunity to testify about the impact of new immigration enforcement tactics on access to justice and services in New York City

BDS is the largest legal services provider in Brooklyn, representing nearly 40,000 low-income New Yorkers each year who are arrested, charged with abuse or neglect of their children or face deportation. Our immigration practice represents more than 1,000 immigrant New Yorkers every year by advising BDS’s criminal defense attorneys and their noncitizen clients on the immigration consequences of guilty pleas through our Padilla Unit, providing deportation defense through the City Council-funded NYIFUP program, and providing affirmative application assistance for immigrant clients from all of BDS’s practice areas through out Youth and Communities Project. I will speak today about the trends that we are seeing across all three of our Immigration units and how they affect the communities we serve.

  1. In Criminal Court

Inability to counsel non-citizen criminal defense clients on pleas

In 2010, the U.S. Supreme Court held in Padilla v. Kentucky that the Sixth Amendment requires defense counsel to provide affirmative, competent advice to a noncitizen defendant regarding the immigration consequences of a guilty plea.[1] One in four of BDS’s criminal defense clients are not U.S. citizens and, under the president’s new enforcement priorities, they are all now priorities for deportation by virtue of having been arrested.

Trump’s Executive Order upends the prior enforcement priorities for undocumented people and people with legal immigration status alike. It used to be that some immigrants who were convicted of minor crimes were not deemed enforcement priorities.  In addition, non-citizens were not considered priorities just by virtue of having been accused of a crime. After the new executive order, anyone with any criminal history or open charge is a priority, as well as anyone who has committed acts that constitute a chargeable criminal offense.

This sows fear and confusion for our immigrant clients. Understandably, our criminal defense clients may see their defense attorneys as agents of the state, impacting our ability to build trusting relationships that allow us to help our clients achieve their own personal goals and the best possible outcome in the case. How can they trust us if we cannot accurately advise them? Indeed, I believe that the current state of affairs endangers our ability to provide effective counsel under the standard articulated in Padilla v. Kentucky. Judges, prosecutors, court-mandated service providers and other players in the court system are likewise confused about how to handle cases involving non-citizens.

NYPD fingerprinting and Broken Windows policy leads ICE directly to our clients

NYPD’s policy is to fingerprint anyone who is arrested, even if only for a low-level offense like fare evasion. Some police armed with tablets are even fingerprinting people in their neighborhoods, without even making an arrest that leads to a trip to the precinct and processing at Central Booking.[2] Fingerprints collected by the NYPD are transmitted to the FBI, who in turn can share them with the Department of Homeland Security, potentially leading to an arrest by ICE and deportation. Even if a district attorney declines to press charges, an immigrant is put at immediate risk of being found by ICE. Broken windows policing, or the criminalization of the most minor offenses, even without a resulting conviction, thus directly sends thousands of immigrants and their fingerprints to the federal government every year.

Over the past three years, the BDS immigration practice has represented dozens of detained clients in deportation proceedings for underlying “crimes” like possession of small amounts of marijuana, turnstile jumping, and possession of “gravity knives” (really work tools carried by laborers, often required by their union contracts, and purchased legally at major retailers like Home Depot).  Many of these clients are legal permanent residents who had been living in the U.S. for dozens of years with these minor convictions on their record before they were swept up by ICE.

Courthouse Arrests

Unlike attorneys in other boroughs, we have not seen an uptick in courthouse arrests by ICE in Kings County in 2017. That being said, courthouse arrests occurred throughout the past presidential administration. Our internal records indicate more than one dozen BDS clients have been arrested in Brooklyn courthouses and taken into ICE custody in the past four years. A BDS client from Guatemala had the story of her courthouse arrest chronicled in the N.Y. Times in 2014.[3] Most recently, in November 2016, a criminal defense client who was receiving treatment services through the Brooklyn Mental Health Court was arrested by ICE in the hallway of Brooklyn Supreme Court while he waited with his attorney for his case to be called. Our client had been reporting regularly to the criminal court for the past six months in accordance with his mental health court treatment plan. Our client has mental health diagnoses and had been hospitalized just prior to his ICE arrest in relation to his diagnoses.

Recommendations:

  1. End Broken Windows Policing. The City Council must be a leader, calling upon the Mayor and the NYPD to end broken windows policing, a policy that, in criminalizing even the smallest of offenses, puts thousands of immigrants in danger.
  2. Pass legislation banning ICE from city buildings, including our courthouses.
  3. Monitor the Implementation of the Criminal Justice Reform Act. You must also ensure that the implementing language of the Criminal Justice Reform Act, passed by City Council last year, is very restrictive to require civil summonses in all but the narrowest group of well-defined cases.
  4. Work with District Attorneys to develop practices to protect immigrants. We offer our thanks to Speaker Mark-Viverito for working with the DA’s Offices to implement programs for warrant amnesties. We also ask the council to urge DA’s to expand the use of the criminal case disposition Adjournment in Contemplation of Dismissal (ACD) and allow defendants to enter into diversion programs without first entering a guilty plea, similar to the procedure provided by CPL 216.05(4).
  5. Urge Governor Cuomo to exercise his pardon power to protect immigrants from deportation. The City could fund community organizations or partner with pro bono law firms to file pardon applications and do pardon advocacy.
  6. Work with city agencies and community organizations to ensure that information that is disseminated to the public is accurate, especially as it relates to the immigration consequences of criminal court involvement.

 

III. In Federal Immigration Court

Rising caseloads

This month, the immigration docket at the federal courthouse at Varick Street added a third intake day. The courts are moving so quickly with cases that we cannot pick up cases fast enough. And so far, these are cases that were brought into the system during the Obama administration. We have not yet even seen the people who were arrested by ICE after President Trump took over. The third intake day is already exceeding our capacity to serve our existing clients, yet we expect further increased caseloads as we begin to see the results of the new enforcement priorities.

To make matters worse, not only are we seeing more cases, but we are seeing that ICE has become harsher towards our clients than they were even just last year.

Asylum seekers no longer being released on bond

For existing cases, we are seeing decreases in the use of prosecutorial discretion and discretionary release. Before last week, we had not had an asylum seeker released on bond in more than six weeks. It appears that the White House’s January 25 executive order on border enforcement had the effect of ICE refusing to release detained asylum seekers even where they had passed an initial screening interview and had a sponsor or family member with lawful status ready to house and support them. We have had a few releases since starting to file federal habeas corpus litigation against this practice, but remain concerned that going forward ICE’s default will be to detain everyone, including asylum seekers, parents, and victims of violence and trauma, and to fight release however we seek it.

ICE targeting people who won relief but have not yet received their visas or green cards

We are also seeing that NYIFUP clients who have been granted relief but have not yet received their green cards are being sought out by ICE and re-arrested. For example, we represent a 16-year-old client from Central America who has an approved Special Immigrant Juvenile Status (SIJS) application who was arrested by the ICE gang unit and is now is secure detention. While his SIJS application was approved, he has not yet received his visa number from USCIS. It is unclear to us why he was taking into detention by ICE, as he was not arrested by the NYPD or did not try to re-enter the U.S., two reasons that people are sometimes re-detained after release.

Arrests in the courthouses

Our immigration clients, like our criminal defense clients, are scared to go to court. ICE agents now roam the hallways and last fall we often observed ICE agents arresting people in the courts. This was uncommon in recent years.

ICE OSUP check-ins

In some cases, ICE may decide not to execute a final removal order and might instead issue an “Order of Supervision,” or OSUP. A “post-order-of-removal” Order of Supervision may be issued under limited circumstances, such as when ICE determines the individual cannot be removed due to his or her country’s refusal to accept them, or when it is otherwise impracticable or contrary to the public interest to remove the individual. An Order of Supervision is considered to be a “humanitarian act” on the part of ICE, and may be available if the non-citizen is the primary care giver to a child with a medical condition, or if they themselves are receiving medical treatment for a serious condition, etc. The Order of Supervision will direct the non-citizen to appear at regular ICE check-ins, usually every few months and at least once a year.

Our clients who have been attending regular OSUP check-ins for years are now terrified to appear before ICE. One of our NYIFUP clients who was released from detention because he had a heart attack while in custody was recently hospitalized because of the stress and fear of deportation. Clients who previously checked in once or twice a year are now being asked to return in a couple of weeks or a month with their passports, ostensibly to facilitate deportation.

Our attorneys and office staff who are already overworked are doing their best to accompany our clients to these check-ins, but we simply do not have the capacity to meet the need and quell the fears of our clients.

The Need for NYIFUP

NYIFUP attorneys have never been more important. We are a human shield for our clients, doing everything in our power to show them compassion in a system that increasingly views our clients as deportable others – “criminals” or “aliens” with rights that can and are regularly trampled on. Even when we lose our client’s case, we provide them with the opportunity to share their story with the prosecutor and judge and make the case why they deserve to remain in this city with their family and community.

The Council’s commitment of universal representation for every detained person who meets the income requirements of NYIFUP is critical to ensure that every person who comes before immigration court in New York City is afforded the right to make their case, no matter their background. We have had cases with clients convicted of crimes that we later successfully vacated because they were innocent or wrongly charged. By building trust and rapport with our clients, many of whom are survivors of incredible violence and trauma back in their home countries, we investigate and present evidence about why our clients’ “criminal acts” are often the direct result of the trauma they have suffered. We have uncovered that many clients were actually U.S. citizens, but often never had the resources or tools to find the evidence to prove their citizenship until they were appointed a NYIFUP attorney. NYIFUP is the strongest example of our City’s commitment to immigrant New Yorkers, made stronger still by your commitment to universal representation – the belief that all people are worthy of representation.

Recommendations:

  1. We ask that the City double current funding levels for the New York Immigrant Family Unity Project to ensure that every detained New Yorker has access to representation when facing deportation.
  2. The city should increase funding on complex cases, whether in removal defense, affirmative applications, motions to reopen and stay of removal, or even for accompaniment of people to their OSUP check-ins.

In the Community

Clamoring for Know Your Rights

Since the presidential election last fall, our office has received increasing requests from the community to present Know Your Rights trainings to the community. Since the first immigration Executive Order was announced we are now receiving near daily requests for assistance from elected officials, community-based organizations, city agencies, religious institutions and the press. We are doing our best to meet the demand, but regularly have to turn down requests because we do not have the capacity.

Daily Calls from Current and Former Clients

All of our attorneys and paralegals have seen a huge increase of panicked calls from our clients, current and former, about what to do if ICE is at their door, whether or not they can travel, what they should be doing with their US citizen children, whether they should appear in court, requesting immigration legal services for their loved ones, and more.

In short, our communities are panicked and need the support of legal service providers more than ever. We want to continue to support all of our former and current clients, as well as serve more people, but our capacity is limited by the resources currently available to us.

Recommendations:

  1. We ask that the Council fund legal service providers to perform community outreach, do know your rights presentations, conduct free legal screenings, and handle both straightforward and complex cases.

Conclusion

The New York City Council has demonstrated its leadership and support for immigrants through funding to legal service providers and the creation of NYIFUP. The way to help protect the rights of New Yorkers is by providing them education, legal counsel and support, and ending Broken Windows policing. BDS works to support immigrants and their families and communities every day, but the need for our services and the services provided by the dozens of other legal service providers and grassroots organizations is more acute than ever. We look forward to keeping you abreast of what we see every day on the ground and working together to craft policy responses that will help protect immigrant New Yorkers, strengthen families and stabilize communities.

[1] Padilla v. Commonwealth of Kentucky, 559 U.S. 356 (2010).

[2] Tatiana Schlossberg, New York City Police to Be Equipped with Smartphones and Tablets, N.Y. Times, Oct. 24, 2014, available at https://www.nytimes.com/2014/10/24/nyregion/new-york-city-police-to-be-equipped-with-smartphones-and-tablets.html.

[3] Kirk Semple, Advocates Seek to Make Courthouses Off Limits for Immigration Officials, N.Y. Times, May 26, 2014, available at https://www.nytimes.com/2014/05/27/nyregion/advocates-seek-to-make-courthouses-off-limits-for-immigration-officials.html.

BDS EXECUTIVE DIRECTOR LISA SCHREIBERSDORF TESTIFIES BEFORE THE STATE SENATE PUBLIC HEARING ON RAISING THE AGE OF CRIMINAL RESPONSIBILITY

TESTIMONY OF:

Lisa Schreibersdorf – Executive Director

BROOKLYN DEFENDER SERVICES

Presented before
The Senate Standing Committee on Children & Families
and
Senate Standing Committee on Crime Victims, Crime & Correction
Public Hearing
on
Raising the Age of Criminal Responsibility

February 6, 2017

My name is Lisa Schreibersdorf. I am Executive Director of Brooklyn Defender Services (BDS). BDS provides multi-disciplinary, and client-centered criminal, family, and immigration defense, as well as civil legal services, social work support and advocacy, for tens of thousands clients in Brooklyn every year. Our office has a specialized adolescent unit, called the Brooklyn Adolescent Representation Team, which represented more than 1900 13- to 17-year-olds in Brooklyn criminal and Supreme Court in 2015. In 2016 that number fell to just over 1400. The vast majority of our adolescent clients are charged with misdemeanors and last year only a handful of our clients were sentenced to upstate prison time. At any given time about thirty of our adolescent clients are detained pre-trial at Rikers Island.

I thank the Senate Standing Committee on Children and Families and the Senate Standing Committee on Crime Victims for inviting me to speak today about raising the age of criminal responsibility in New York and its impact on the young people that BDS attorneys currently represent.

There is no doubt that New York can and must do better for young people in the criminal justice system. First and foremost, any legislation must involve removing youth from the custody of local jails and NYS Department of Corrections and Community Supervision (DOCCS) prisons as quickly as is feasible and transferring them to safer and more rehabilitative youth facilities. The horrors that 16- and 17-year-olds suffer in adult jails and prisons are well documented and are discussed in detail in the Governor’s own Commission for Youth, Public Safety and Justice Report issued in 2015. Over the past few years advocates across the state have done an incredible job of educating the public and policymakers about the significant harm that 16- and 17-year-olds suffer in adult jails and prisons. We are deeply grateful for their constant efforts to advocate for the immediate removal of youth from adult facilities.

However, as the attorneys who represent these young people in court, we are deeply concerned about any proposal that would harm the tens of thousands of 16- and 17-year-olds who are never exposed to jail or prison time in the adult system, but could potentially face those exact penalties in family court under previous Raise the Age proposals. Yes, we must remove the minority of youth who will be incarcerated from adult facilities, as soon as possible. But we firmly believe that the legislature must not sacrifice the welfare of the vast majority of youth whose cases would be transferred to the more draconian and less transparent Family Court system in its efforts to “raise the age.”

Furthermore, any legislation that intends to improve outcomes for adolescents must navigate the reality that both our adult and juvenile justice system are deeply racist and disproportionately harmful to Black and Latino youth. While only 64 percent of New York City youth are black or Latino, they make up 88 percent of the youth arrested in the city, 92 percent of the youth detained pre-trial, 90 percent of the youth placed in non-secure facilities and a shocking 97 percent of New York City youth in secure Office of Children and Family Services (OCFS) facilities. Some upstate counties have studied and observed even more disparate outcomes. According to the New York State Juvenile Justice Advisory Group, black youth in Monroe County were 20 times more likely than white justice-involved youth to be admitted to secure detention. In Onondaga County, black youth comprised only 15 percent of the county’s youth population and only 38 percent of the City of Syracuse’s youth population, but they represented almost three‐quarters (73%) of the admissions to secure detention in 2010. Black youth in Onondaga were thus detained at a rate almost five times as high as their proportion in the county’s population. In New Jersey, WNYC just exposed that in some counties, family court judges are twice as likely to approve requests from District Attorneys to prosecute black children as adults than for white or Latino kids. BDS is deeply concerned about any legislation that will give judges more power to sentence youth harshly without providing any additional procedural safeguards to limit racial bias and the potential for incarceration and harsher treatment for young people of color.

Not surprisingly, some states that have raised the age are now faced with the reality that removing cases to an imperfect juvenile court system does not always create better outcomes for youth. States that studied the problems with their delinquency system and used raise the age legislation as an opportunity to improve how they treat adolescents in Family Court have fared much better. BDS calls upon the legislature to work with defenders, the people who have spent their lives fighting for young people in court, to pass raise the age reform that will, beyond ensuring that no young person is worse off than they are under the current law, that New York leads the way in the creation of an adolescent justice system that meets the unique needs of older adolescents in line with modern neuroscience and social science research.

We propose two options for the legislature:

1. Move all youth under the age of 18 into Family Court, no matter what crime they are charged with, and amend the Family Court Act to ensure that youth do not receive harsher punishments in family court than they do in adult court.

Sending all 16- and 17-year-olds to Family Court would allow judges to see the wide range of adolescent behavior and allow them to better discern between normal but inappropriate adolescent behavior, like taking another student’s backpack or cell phone at school, and the small percentage of young people who actually commit serious crimes, like rapes and murders. If the ideological underpinning of raise the age is that adolescents are neurologically different than adults and thus less culpable for their actions, then the same holds true for adolescents who commit serious crimes. We believe that if the courts saw the whole spectrum of adolescent behavior, young people would not be punished for low-level crimes with extended terms of probation with onerous conditions or be sent to placement as they often are today.

Furthermore, the legislature should take away the power of Family Court judges to punish a child more harshly under the Family Court Act than they would be able to punish an adult, for the same action, under the Penal Law and the Criminal Procedure Law. If we are committed to raising the age to promote better outcome for youth and communities, then we must also make long-overdue changes to New York’s Family Courts to ensure due process protections, fairness and transparency for all youth, including younger teenagers.

You must also provide funding for more judges and court staff, as our state’s family courts are severely under resourced and overcrowded. Currently, Article 10 child welfare cases can take well over a year from opening arguments until a judge’s decision. Vulnerable families with cases in other parts of the family court system should not be further harmed because of any raise the age legislation.

2. In the alternative, BDS proposes the creation of hybrid adolescent courts where judges would have the authority to act under either the Criminal Procedure Law or the Family Court Act.

Because of many of the systemic problems ingrained in our family courts, we propose that New York institute adolescent courts that combine the protections of the adult criminal system with the programming and possibilities for rehabilitation and sealing in the family court. The court would provide a series of options for quick resolution prior to invoking the highly intrusive procedures in the Family Court Act. Adolescents would maintain their constitutional rights to a jury trial, to be free from self-incrimination and the ability to plea bargain. However, no adolescent should be eligible for adult sentencing, and certainly no adolescent should be eligible for a life sentence. The default should be that most adolescents would avoid incarceratory sentences altogether, and the court would be resourced with alternative to incarceration programs to ensure that even more youth diverted from possible jail and prison sentences. BDS testified in detail about what such a court could look like at the New York City Council Hearing last month. A copy of that testimony is available at: http://bds.org/wp-content/uploads/2017.01.19-City-Council-testimony-on-RTA.pdf.

Alternative Legislative Solutions
Fortunately, the legislature already has a bipartisan model for such legislation that could serve as an important starting point for a more nuanced raise the age conversation. We would ask your committees to take a look at S. 7394 (Saland)/A.10257 (Lentol) from 2012 and S. 4489A (Nozzolio)/A.7553A (Lentol) from 2013. The bills were iterations of Former Chief Justice Lippman’s Raise the Age Proposal, titled the “Youth Court Act” that would establish a new “Youth Division” to adjudicate cases involving 16- and 17-year-olds and combine the best features of the Family Court and the criminal courts.

Importantly, the 2012 bill required young people tried in the youth part to be held in juvenile facilities, but the 2013 bill did not. BDS firmly believes that 16- and 17-year-olds who have their cases heard in this specialized court part must be removed from adult jails and prisons. Any raise the age legislation that will garner our support must move youths charged with crimes committed when they were 16 or 17 years old into juvenile facilities.

BDS notes that both the 2012 and the 2013 Lippman bills would exclude youth charged with violent crimes from having their cases heard in the part. For the same reasons stated above, it is critical that judges in this part see the wide range of adolescent behavior, including violent criminal behavior. Instead of having the Family Court Act sentencing procedures apply, however, the court could apply the Juvenile Offender Act sentencing to youth charged with violent crimes and be entitled to serve out their sentences until their 21st birthdays in rehabilitative youth facilities. We strongly recommend that the legislature insist that all cases involving 16- and 17-year-olds go to the youth division, as the Lippman bill calls it, and that those young people not face adult sentencing if convicted.

Finally, additional steps should be taken to mitigate the long-term consequences of court contact for 16- and 17-year olds, including raising the age of youthful offender status, opportunities for sealing of prior criminal records, and the elimination of fines, surcharges and civil judgments previously imposed.

Problems with the Governor’s Raise the Age Proposal (2017)
BDS has serious concerns about the Governor’s Raise the Age proposal as drafted in the FY2018 NYS Executive Budget Education, Labor and Family Assistance Article VII Legislation. We raised these concerns with the legislature and executive branch in previous years yet they remain unaddressed in the current version.

Our gravest concern is that the young people most in need of the rehabilitative programming available in the Family Court are excluded from the court altogether and would have their cases heard in adult court as Juvenile Offenders under a new, expanded list of crimes. But perhaps more troublingly, the bill would move youth charged with low-level crimes to Family Court, where they face long periods of probation and placement for misdemeanor crimes where the vast majority receive an Adjournment in Contemplation of Dismissal (ACD) on the first court date. Furthermore, according to the Governor’s Commission report, 75 percent of 16- and 17-year-olds already have their convictions converted to Youthful Offender adjudications, sealing their conviction from the public and protecting them from adult sentencing ranges. The Governor’s bill, and indeed many of the bills put before the legislature in previous sessions, would subject this group of young people, the vast majority of 16- and 17-year-olds charged with crimes in New York, to harsher sentencing under the Family Court Act.

While it may seem counterintuitive, the research is clear: when it comes to youth, it is best to steer non-violent youthful offenders out of the justice system. Studies show that the vast majority of first-time offenders will never be arrested again, regardless of any intervention they receive. Almost 70 percent of youth who are arrested once are never arrested again. 20 percent of young offenders are re-arrested two or three times, with only six to eight percent falling into the category of three arrests or more. Re-arrest rates appear to mirror the reality in the streets. A recent study found that 91.5 percent of justice-involved youth reported decreased or limited illegal activity during the first three years following their court involvement. Re-offense statistics hold true whether or not first-time offenders are provided diversion interventions. What New York should be doing then, is diverting first time offenders from the system as quickly as possible, as most adult criminal courts already do in most counties in this state, and investing significant resources only in the 20% of cases that are medium or high-risk: cases involving violent or serious crimes. This bill would do the opposite.

Our concerns do not end there. This year and last year’s Governor’s budget bill would also:

• Increase the mandatory minimum for 16- and 17-year-olds convicted of B violent felonies to 5-20 years with a possible bump down if the judge determines that sentence to be “unduly harsh”, as compared to the 3.33-10 years that 14- and 15-year-old face under the existing Juvenile Offender statute.
• Expand the list of designated felonies that expose youth in Family Court to a mandatory 3-5 years in placement, harming youth in the Family Court system as compared to the existing law.
• Allow 16- and 17-year-olds to be charged with violations of harassment and disorderly conduct in Family Court, unlike their younger counterparts, exposing older teens to greater police intervention and much harsher punishment for non-criminal acts in Family Court than they could ever face in adult court.
• There is a post-conviction sealing option in the bill, but it would require people to wait ten years before making the application for sealing, even though Raise the Age is supposed to be about ensuring that adolescents have the right to second chances in their youth.
• While the bill would technically raise the age of Youthful Offender status, it does not allow 19- and 20-year-olds to be eligible for YO sentencing and the adjudication would count against them if they were to pick up charges at a future date, in stark contrast to the existing law.
• The bill would increase the number of Juvenile Offender cases, significantly increasing the number of youth whose cases would be heard in adult court, and removing the opportunity for youth charged with more serious crimes (but not the most serious crimes) from the protections of Family Court.
• While the bill slightly increases the scope of cases that probation should be required to adjust in delinquency cases, it provides so many exceptions (and exceptions to exceptions) so as to make the new presumptions nearly meaningless.
• There is no mention of concurrent jurisdiction under both the criminal procedure law and the Family Court Act for judges in the Youth Part in Supreme.
• And finally, this bill, as compared to previous bills, puts much of the financial responsibility of raising the age back on to cash-strapped counties who can ill afford any increase in costs for the juvenile and criminal justice systems.

In contrast to the executive budget proposals, in 2014 New Jersey state bill S2003/A4299 raised the minimum age for what we in New York would call JO eligibility from 14 to 16, narrowed the list of offenses that would be JO eligible, and amended the standard governing such standards. The New Jersey bill went into effect in 2016.

Under the new law, prosecutors must prove by clear and convincing evidence that the reasons for transfer to adult court outweigh the probability of the juvenile’s rehabilitation by the use of the procedures, services and facilities available to the Family Court prior to the juvenile reaching the age of 26. The new bill also requires due process, including representation by counsel, before a young person who is confined in a juvenile facility can be transferred to an adult prison. The bill also eliminates the use of solitary confinement as a disciplinary measure in juvenile facilities and detention centers, and places time limits on the use of solitary confinement for reasons other than punishment, such as safety concerns.

In regards to the transfer of young people most in need of the intensive services that family courts can provide, New Jersey improved their statute to make it more in line with modern brain science. In contrast, New York’s 2016 same-as bill applied the outdated existing statute to 16- and 17-year-olds and the Governor’s bill increased the list of crimes and punishments for 16/17 year-olds who would be tried as JOs. More punitive policies such as these are particularly harmful to young people of color who make up the majority of cases referred to New York’s Family Courts.

My staff and I are willing to explain further why many of these details are of concern. As the people who currently represent adolescents ages 13- to 17-years old in adult courts, we know that the details are the difference between a second chance and prison time. We firmly believe that any of our clients, no matter their age, is entitled to the protections provided to them by the New York and U.S. Constitutions. The words in the legislation matter and will have a direct impact on the young people that we are purporting to help by raising the age.

It is clear that the legislature must act to remove 16- and 17-year-olds from adult jails and prisons. But we hope that the concerns and proposals we raise today help you to move forward on legislation that, at the very least, will not make any young people worse off tomorrow than they are today, and even better, may drastically improve outcomes for all adolescents, their families and communities. New York can and should do this. Your public defenders are here to help.

If you have any questions about my testimony, please feel free to reach out to me at lschreib@bds.org or 718-254-0700 or BDS policy attorney Andrea Nieves at anieves@bds.org.

BDS SUBMITS WRITTEN COMMENTS ON NYC DOE PROPOSED AMENDMENTS TO CHANCELLOR’S REGULATIONS A-210 & A-750

COMMENTS RESPECTFULLY SUBMITTED BY:

Kaela Economos

Social Work Supervisor, Family Defense Practice

BROOKLYN DEFENDER SERVICES

And

Keren Farkas

Supervising Attorney, Education and Employment

BROOKLYN DEFENDER SERVICES 

Presented to

The New York City Department of Education

Regarding: Proposed Amendments to

Chancellor’s Regulation A-210

and

Chancellor’s Regulation A-750

December 20, 2016

 Dear Chancellor Carmen Farina:

Thank you for the opportunity to submit formal written comments on the proposed amendments to the Regulations of the Chancellor of Education relating to Minimum Standards for Attendance Programs (A-210) and Child Abuse Prevention (A-750).

BDS is a public defender organization that provides inter-disciplinary, holistic, client-centered representation in the areas of criminal, family, and immigration defense, as well as civil legal services, for tens of thousands of clients every year. The BDS Family Defense practice represents almost 2,000 respondents in child welfare cases every year and has helped thousands of children remain safely at home with their families or leave foster care and safely reunite with their families.  Our attorneys, social workers and parent advocates are in the field every day interacting directly with the Administration for Children’s Services, foster care agency workers and, when necessary, school personnel.  BDS’ civil attorneys offer collateral support to our clients in the areas of housing, public benefits and education.  Our Education Unit provides legal representation and informal advocacy, largely in the areas of special education and school discipline.  The education attorneys and social workers also work to maintain our clients’ involvement in their child’s education throughout child welfare involvement, including court ordered supervision, removal or reunification.

BDS recognizes the enormity and complexity of the Administration for Children’s Services’ (ACS) charge to protect the safety of children while also working to preserve families. Likewise, we acknowledge that schools are a centerpiece of a child’s life, and school officials have a unique vantage point into the well-being of its students.  In light of recent tragedies, this is understandably a time where ACS wants to reflect on its practices. That said, singling out horrific cases and focusing on increased surveillance of families rarely results in the kind of thoughtful reforms that keep children safe and families strong. We expect that any changes that will come from these amendments will be coupled with intensive and ongoing training to ensure school officials understand that reasonable cause to suspect child abuse or neglect is a prerequisite to any call to the New York State Central Register (SCR), independent of a student’s absences. [1]

While we recognize the worthy intentions of these amendments, we are concerned that, as written, the new guidance may encourage school officials to alert the SCR or ACS in unwarranted situations. We are concerned that the amendments ask school officials to take on CPS-like monitoring responsibilities, which seems inconsistent with the role of a school official. Clearly, strong and trusting relationships between families and school staff are crucial towards supporting a child’s education. The proposed requirements may lead parents, namely Tier 2 parents, to feel scrutinized and untrusted by their child’s school. A breakdown in the parent-school relationship can not only impact the child’s education and stability, but also discourage open communication between parents and the school. This only worsens outcomes for children and families.

We ask that the Chancellor consider the following points in this effort to create a policy that keeps students safe without further reinforcing the vulnerability of families presently or previously involved in the child welfare system.

(1) The Proposed Changes to A-210 and A-750 Improperly Place Functions of ACS onto DOE Staff

The proposed changes to A-210 and A-750 require schools to take on a number of additional tasks and roles.   Some changes expand existing responsibilities. For instance, schools already have attendance programs, including designated coordinators responsible for documenting attendance and reaching out to parents. A-210 and A-750’s recommended changes, however, specify an enhanced and graded monitoring protocol exclusively for families currently or previously involved in the child welfare system.[2] To implement the protocol, schools will receive a monthly list of its child-welfare involved students.[3]

Although we oppose the proposal, if this protocol is implemented, we expect that the monthly list of students will only be shared with staff formally responsible for attendance tracking. School officials may think a family’s current or past ACS involvement indicates issues of abuse even though the vast majority of child welfare cases involve allegations of neglect.[4] In addition, almost all child welfare cases are related to poverty and the stress that poverty brings to families.[5]   However, knowledge of child-welfare involvement may lead school staff to treat these families differently with undue hyper vigilance, leading to lack of trust and breakdown of vital relationship building between teacher and parent. Accordingly, to prevent alienating these families, the information should only be shared with those staff responsible for monitoring attendance.

Presumably, the increased focus on attendance is to verify a child’s whereabouts and safety.  However, A-750’s proposed protocol does not end at checking attendance.  A-750 III.C.3 also asks schools to conduct ongoing monitoring of child-welfare involved students.  We recognize that, as mandated reporters, school officials are required to report suspected abuse or neglect of children when presented with reasonable cause to suspect. However, the mandated reporter role does not have a monitoring or investigatory component.  The proposed amendment to A-750 imparts a new function on school staff by requiring school leadership to  “assign a school-based point” to students in all Tiers who must “make regular inquiries of classroom teachers and the school health office and update the ILOG records of these students with pertinent information about school progress or issues that arise.”

A-750’s proposed request for targeted monitoring is troubling. Monitoring a family seems at odds with educating a child.  Monitoring and investigating a child’s welfare is solely under the purview of ACS. Moreover, ACS is only allowed to engage in those functions when specific legal requirements are met.  The proposed monitoring is seemingly asking DOE to take on an ACS function.  Schools are a separate entity from ACS, and their functions should reflect that. Confusing the roles could compromise open school cultures between staff and families, while also potentially leading to unnecessary and harmful interventions for poor families.

We also want to note that DOE’s proposed new functions are, in part, duplicative of the responsibilities of ACS and foster care agency caseworkers. When families are under ACS supervision, caseworkers are already required to monitor a child’s education and progress. At many junctures, including conferences and court appearances, the caseworker is expected to provide updated information on school matters. We understand that this responsibility has typically been executed in collaboration with the DOE. Likewise, we acknowledge that caseworkers sometimes fall short of this responsibility. The proposed protocol, however, seems to be putting the onus of the responsibility on DOE, rather than putting the emphasis on improving ACS’ training and accountability.

Recommendations:

  • ACS and DOE should only share the list of ACS-involved students with staff responsible for monitoring attendance. Strict procedures should be implemented to ensure the information is otherwise kept confidential.
  • The proposed change, A-750 III.C.3, requiring ongoing monitoring, should be removed.
  • ACS and DOE should provide comprehensive training to DOE staff to understand the general trajectory of an ACS case and the ramifications of a call to the SCR. Beyond the general training, DOE staff should be instructed about the complexities of ACS involvement from parents involved in ACS proceeding.

(2) The proposed changes to A-210 and A-750 could result in an unlawful extension of supervision over families with closed cases, potentially resulting in unnecessary ACS involvement

A-750’s new “Policies and Procedures for Escalating Absence Concerns Regarding Students Involved with the Administration for Children’s Services” requests oversight over families no longer involved with ACS. Specifically, Tier II includes families who were “the subject of an ACS investigation” that was substantiated within the current or prior school year. [6] From the day they receive the case, ACS has 60 days to complete an investigation.  At the conclusion of the investigation, ACS determines whether the allegations are indicated or unfounded. If the allegations are substantiated, ACS may file a court case, offer voluntary preventive services, or close the case. A court order is the only avenue to extend supervision against a family’s consent.

All Tier 2 families have closed ACS cases. The cases are closed because there was no indication or legal basis to keep them open. The families are then no longer subject to involuntary supervision from ACS or, presumably, any city agency. By including Tier 2 families in the tiered response protocol, however, school officials are essentially being asked to continue supervision of these families without cause, which is inappropriate. Although we recognize that school officials are mandated reporters, the inclusion of Tier 2 families in the protocol unnecessarily takes school officials beyond that role.

We fear the implications of this policy because it puts a mark on families who, presumably, already cooperated with ACS, engaged in services, or otherwise merited discontinued ACS involvement regardless of what’s happening with the family. This monitoring also stigmatizes the family. Neither DOE nor ACS has put forward evidence that these families are more likely to abuse or neglect their children in the future. The policy’s design, however, has the capacity to alienate these families and build distrust between schools, its families and its students. At the extreme, we are also concerned it will lead to repeated and unnecessary ACS involvement.

Recommendation:

  • Families who are no longer under involuntary ACS supervision, or Tier 2 Families, should not be included in the proposed protocol under Chancellor’s Regulation A-750 § III.

(3) Proposed Amendments to A-210 and A-750 may lead to an influx of SCR calls

Mandated reporters are required to call the SCR whenever there is reasonable cause to suspect child abuse or maltreatment.  While A-750 refers to the reasonable cause standard, the language and framing of the protocol will likely confuse a lay person as to whether reasonable cause remains the threshold requirement to call the SCR. Further, because the proposed changes single out child-welfare involved families, it calls to reason that schools will apply increased vigilance and suspicion over these families, leading to more calls to the SCR.

An influx of unwarranted calls to the SCR can have detrimental impacts on the overall system and individual families.  More calls to SCR do not necessarily enhance child safety. Rather, it can backlog the already overburdened system, depriving those families most in need of attention and support.  For the individual family, it can result in unnecessary and potentially harmful intervention. It may also lead to a breakdown in the relationship between the family and the school.

Needless to say, this policy will also disparately impact families of color. Racial disparities in the child welfare system are well documented. Implicit bias in mandated reporting results in over reporting of families of color to ACS for suspected abuse or neglect.[7] This phenomenon occurs without any evidence to suggest that children of color are more likely to be abused or neglected. Implicit bias at the point of referral, investigation and substantiation is already a problem plaguing our child welfare system.[8]  Accordingly, if school personnel are being asked to conduct more in depth monitoring of students, beyond their role as mandated reporters, and fulfill the policy’s protocol, DOE and ACS should provide the necessary bias training to prevent disparate impact on families of color. For instance, DOE staff should be required to attend training around implicit bias and cultural competency to help minimize the potential of racial bias in reporting and monitoring of families.

After calling the SCR or identifying an attendance issue, the tiered response protocol and A-750 III.D. also instructs DOE to reach out to the appropriate ACS entity.[9] In several instances, the protocol directs DOE and ACS to convene meetings. For instance, if DOE calls the SCR regarding a Tier 1 family, ACS is directed to conduct a safety assessment and possibly a school conference.[10] Given that these families may have existing court cases, the protocol should require ACS to contact the parent’s attorney and other attorneys on the matter before scheduling a conference in these cases. For Tier 3 families, the protocol also suggests that case planners schedule a meeting with the school to address the child’s absences.[11] As these children are in foster care, we ask that case planners notify the parents of any school meetings to ensure their involvement in educational decision-making.

The tiered response protocol also appears to ask schools to contact ACS when the reasonable cause standard is not met.  For instance, even when schools are satisfied with a family’s explanation for a child’s absence, the protocol instructs schools to contact ACS when they believe “further intervention and coordination with ACS would address the reasons for absence.”[12] This guidance applies to families without active ACS involvement. Specifically, for Tier 2 families, it directs schools to contact ACS’ Office of Education Support and Policy Planning.[13] Then, ACS is instructed to work with the school to determine whether there is an open preventive services case and, if not, whether it is feasible to call the SCR. ACS will also coach schools on what information to provide to the SCR.[14]

There are certainly scenarios where well-meaning school officials want to involve ACS to help a family get support. We recommend that any such decision, however, be made in collaboration with the family. Preventive services are indeed a valuable way to connect families with services so that ACS involvement is unnecessary. However, preventive services are most effective when they remain voluntary and community based.  Schools should be connected with community-based organizations that provide families with support. Additionally, they should only be utilized when there is a palpable way that the agency could support the family. When the reasonable cause standard is not met, schools should not be encouraged to reach out to ACS without consulting the family first.

An overreliance on preventive services- often only to provide additional monitoring of families- has caused major backlogs and delays in families receiving preventive services whether mandated or voluntary.  This clogged pipeline makes it even more difficult for families who really need and want preventive services to get them. We have testified extensively about preventive services before the New York City Council. The testimonies can be found online at http://bds.org/bds-family-defense-social-work-supervisor-kaela-economos-testifies-before-the-new-york-city-council-committee-on-general-welfare-on-preventive-services/ and at http://bds.org/wp-content/uploads/3.17.15-NYC-Council-Committee-on-General-Welfare-Testimony.pdf.

Recommendations:

  • ACS and DOE should provide comprehensive training to DOE staff to understand the required standards for calling the SCR, as well as implicit bias and cultural competency.
  • When the reasonable cause standard is not met, DOE staff should be required to consult with families and get consent before contacting ACS.

Conclusion

While we understand DOE’s and ACS’ earnest intention with in developing this policy, we have questions about its likely implications. Specifically, we are concerned that it is overreaching and could lead to unnecessary intrusions into the lives of poor families, without having a palpable impact on the safety of children in New York City.  We hope the DOE will consider our suggestions in finalizing the language of Chancellor’s Regulations A-750 and A-210.

Please do not hesitate to reach out to Keren Farkas, Supervising Attorney, at kfarkas@bds.org or (718) 254-0700, or Kaela Economos, Social Work Supervisor at keconomos@bds.org or (347) 592-2554 with any questions.

 

[1] New York Social Services Law § 413.

[2] Chancellor’s Regulation A-210 § III.D; Chancellor’s Regulation A-750 § III.

[3] Chancellor’s Regulation A-750 § III.

[4] New York City, Keeping Track Online: The Status of New York City Children (2013), available at http://data.cccnewyork.org/profile/location/1/city#1/new-york-city/1/1193,1194/a/a.

[5] Id.

[6] Chancellor’s Regulation A-750 § III.B.2(b).

[7] Jina Lee, et al., “Implicit Bias in the Child Welfare, Education and Mental Health Systems,” Nat’l Center for Youth Law [2-5]

[8] Id.

[9] Although not included in the proposed changes Chancellor’s Regulation A-750 or Chancellor’s A-210, this guidance is included in the ACS and DOE October 29, 2016 “Joint Statement Introducing a Tiered Response Protocol for High-Risk Cases of Educational Neglect and Unexplained Absence,” disseminated to all ACS and DOE staff.

[10] See “Joint Statement Introducing a Tiered Response Protocol for High-Risk Cases of Educational Neglect and Unexplained Absence,” Commissioner, NYC ACS & Chancellor, NYC DOE, III.E.ii.c.i (October 29, 2016)

[11] Id. III.E.vi.

[12] Id. III.B.iv.b.

[13] Id. III.E.iii.

[14] Id. III.E.iii.b.

BDS FAMILY DEFENSE SOCIAL WORK SUPERVISOR KAELA ECONOMOS TESTIFIES BEFORE THE NEW YORK CITY COUNCIL COMMITTEE ON GENERAL WELFARE ON PREVENTIVE SERVICES

TESTIMONY OF:

Kaela Economos

Social Work Supervisor, Family Defense Practice

BROOKLYN DEFENDER SERVICES

Presented before

The New York City Council

Committee on General Welfare

Oversight Hearing on

Preventive Services at the Administration for Children’s Services

 December 14, 2016

My name is Kaela Economos and I am a Social Work Supervisor in the Family Defense Practice at Brooklyn Defender Services (BDS).  BDS is a public defender organization that provides inter-disciplinary, holistic, client-centered representation in the areas of criminal, family, and immigration defense, as well as civil legal services, for tens of thousands of clients every year. The BDS Family Defense practice represents almost 2,000 respondents in child welfare cases every year and has helped thousands of children remain safely at home with their families or leave foster care and safely reunite with their families.  Our attorneys, social workers and parent advocates are in the field every day interacting directly with the Administration for Children’s Services and foster care agency workers.

We thank the New York City Council Committee on General Welfare and, in particular, Chair Stephen Levin, for the opportunity to testify today. I will address both the quality and effectiveness of preventive services available to low income communities in New York City and offer BDS’s support for Resolution 1322 and Introductions 1062 and 1374, along with our reactions and recommendations to the bills.

Background
BDS’s family defense practice regularly interfaces with preventive service programs in three situations: (1) when ACS files a neglect petition against a parent whose family is already receiving voluntary preventive services because the agency believes that those services are not adequately addressing safety concerns in the home; (2) when preventive services are required by the Family Court in the context of neglect cases in order to keep children home with their families instead of being removed; and (3) when preventive services are required by the Family Court in order for children to return home to their families.

BDS strongly supports funding preventive services robustly for the intended purpose of these programs, which is to prevent the need for children to be placed in foster care and to reduce the time children spend in care.  In large measure, preventive service programs have been effective in helping to reduce the foster care population which has been reduced from almost 40,000 in 1999 to fewer than 10,000 children in foster care in New York City today.[1]  Keeping families together or reuniting families with services in place instead of placing children in foster care prevents the harm and trauma of removing children from their families and the harm and poor outcomes that children in foster care face.[2]  This also conserves limited social services resources and reduces the burden to taxpayers.

The goal of preventive services is to connect families with services and benefits so that ACS involvement is unnecessary to keep children safe. Ideally, preventive services would give agencies the ability to connect with the community in meaningful ways so that families could turn to them before ACS becomes involved in a crisis. If families could identify preventive services as a supportive option in their communities when they are having problems, much of ACS involvement could be avoided. Instead, ACS mandates preventive services after problems are identified which becomes another intrusive and invasive system in our clients’ lives which breeds suspicion and undermines the potential for meaningful and beneficial relationships.

Preventive services are most successful when they remain voluntary and are community based. The most effective preventive agencies are ones that have deep roots in the neighborhood they serve and have an established track record with the community. This results in communities and neighbors trusting them, which enables families to seek and receive help before anything rises to ACS involvement or mandated services. For example, our Mandarin-speaking families report the greatest satisfaction in cases involving Mandarin-speaking preventive service workers and organizations. When our clients feel like the preventive service agency understands them and their community, and is working with them, and not against them, our clients are more successful in achieving goals for their families.

Preventive service programs can and should be delivered more effectively to help families provide safe and stable homes for their children and to reduce the number of children who enter foster care. In our experience, monitoring requirements placed upon preventive services agencies;  formulaic service planning that does not take into account the complex needs of at risk families;  and delays in assigning preventive services to families in need all have contributed to reducing the effectiveness and availability of preventive service programs.  BDS testified extensively on these points during the preliminary budget hearing before this Committee in March 2015 and offered specific recommendations for ameliorating each of these concerns. A copy of our testimony is available online at http://bds.org/wp-content/uploads/3.17.15-NYC-Council-Committee-on-General-Welfare-Testimony.pdf.

My testimony today revisits some of these issues with new case examples. Suffice to say that the issues we reported on in 2015 have not yet been resolved. Indeed, ACS’ reaction to the recent tragic death of Zymere Perkins has been to remove even more children from their homes. These are the highest numbers of filings and removals that we have seen in all of our nine years of representing indigent parents in Family Court.

Delays in Assigning Preventive Services to Families in Need
As we noted in our March 2015 testimony, the lag between preventive services need identification and service provision often spans months. In some cases, this gap between identification and provision results in ACS seeking to remove children from their families unnecessarily. For example, in one case alleging inadequate housing conditions and leaving an 11-year old alone with younger children, ACS made a removal application where there had been a prior agreement to arrange preventive services that were not put in place in a timely manner. Because the delays in arranging preventive services are well-known in Family Court, judges are often reluctant to return children to their families, regardless of whether there is a plan that preventive services will quickly respond to the families’ service needs, leading to children staying in foster care for longer than necessary. Since only ACS is authorized to make the referral in cases where the judge mandates preventive services (non-voluntary cases), often our clients have no way to access services until ACS puts them in contact with the preventive services agencies.

In July 2015 ACS removed three-month-old twins from the care of their father, a BDS client, without a court order and placed them at the ACS Children’s Center.  The reason ACS gave for the removal was that our client had left the babies in the care of their mother who was not supposed to be alone with the children.  The Family Court held a hearing at which the ACS worker testified that she had requested preventive services for the family months earlier but they had yet to be assigned to an agency.  She admitted that our client had requested assistance with housing and childcare which she never provided.  He was forced to enter the shelter system with his children, and the shelter rules prohibited him from leaving the children with anyone other than their mother while he went to work in the evenings.  The hearing lasted six days, during which time the babies remained at the Children’s Center.  At the conclusion of the hearing, the Family Court denied ACS’ application to remove the babies and returned them to their father’s care.

More than a year later, we see that our clients still suffer significant delays in receiving necessary preventive services.  In late October BDS picked up a case involving a client whose children were released to her with court-ordered supervision. ACS spoke about providing the family with preventive services and our client kept following up with CPS as to status of the preventive services and whether or not ACS sent in a request, but ACS had not done so. At this point, our client decided to get the ball rolling and enrolled one of her sons to receive counseling due to behavior issues and her other son to get an appointment for early intervention, all on her own. Our client returned to court in December and her attorney informed the court about the delay in the preventive services. ACS stated that they only put in the request for services at the end of November, a full month after the first court date. Upon hearing this, the CPS supervisor reported that the family would be transferred to a Family Support Unit (FSU) worker. FSU workers are similar to preventive services workers, but in-house for ACS. FSU workers are often assigned to families after the CPS investigation where there is no foster care involvement but there is still court-ordered supervision of the family.

Recommendation: Preventive workers should be immediately assigned in all cases where families indicate they are willing to participate in preventive services. Worker performance should be assessed on the time between identification of family needs and the provision of services.

Overuse of Preventive Services Causes Backlogs
One major concern is that we often see ACS ask judges in Family Court to mandate preventive services, often without an articulable reason as to why the family needs services or how these specific services can benefit the family when ACS is already supervising the home and/or the parent is receiving other services such as counseling. When ACS asks for unnecessary services, this clogs up the pipeline and makes it even more difficult for families who do want and would benefit from specific services to get the help that they want and need.

As any social service provider will tell you, and social science research confirms, that people are best served when they are able to receive voluntary services narrowly tailored to their needs.[3] Anything beyond this scope often results in worse outcomes for the intended recipient, and greater costs for the system as a whole.

Recommendation: In Family Court, ACS should be required to articulate a reason for preventive services if they are requesting them with the goal of limiting the number of families who receive preventive services to only those who really need them.

Concern about the newly required Preventive Service Termination Meetings
We are concerned that the newly required Preventive Service Termination meetings that are outlined in ACS’s draft Integrated Family Team Conference Protocol that was issued on October 24, 2016 will have unintended negative consequences for families seeking preventive services whether voluntary or mandated. Not only do these new conferences increase the number of meetings the family must attend, they may result in unnecessary delays in the provision of preventive services, especially for homeless families or families with unstable housing.

Recently, we worked with a client who had preventive services in place for her family. The family was then transferred to a different shelter that was outside the catchment area of the assigned preventive service agency. Preventive services could not continue until the family was referred to a new provider in the new catchment areas, but a new referral could not be made until the former provider was able to close out their services with the family. Working under the new IOC conference protocol, this could not happen until there was a termination conference. There were delays in scheduling the service termination conference, including the lack of an available ACS facilitator. Instead of a seamless transition to new preventive services, the delay of the termination meeting, coupled with the long time frame for the preventive service planning conferences, resulted in several weeks of the family not getting any preventive services through no fault of their own.

Recommendation: ACS should reconsider the protocol around preventive service conferences to make service provision more seamless and to allow for a different process for families who are participating in preventive services. At a minimum, a conference should not be held if a family is terminating services due to a change in catchment area.

Concern about the Expiration Date on Mandated Preventive Services
Many of the evidence-based preventive services programs have strict time limits for how long the cases can remain open and it is very difficult to keep the cases open longer.  Time limits mandating the termination of services create a revolving door in the child welfare system. Families must stop services, not because they have completed their goals but because their time is up. Inevitably they return to services because the issues that led to ACS involvement in the first place have not been resolved.  The time limits also undermine the potential for meaningful relationships. Many of these families have had numerous negative interactions with the system and building trust is already difficult so these timeframes are just too short to do any long-lasting substantive work.

Recommendation: ACS should work with families to ensure they receive the voluntary services that they need, as long as they want and need them. However, mandated services should not be extended involuntarily to allow ACS constant intrusion in our clients’ lives.

Bills
Resolution No. 1322- Resolution calling upon the New York State Legislature and the New York State Office of Children and Family Services to develop a parents’ bill of rights to be distributed at initial home visits in child protective investigations and made available online

BDS strongly supports this bill. Connecticut passed a similar bill in 2011 and the Department of Children and Families now shares the bill of rights on their brochures and materials that they give to families. The Connecticut bill already serves as a successful model for implementation in New York. We would similarly urge that the New York State legislature work with organizations like ours that represent parents in Article 10 proceedings to ensure successful rollout of the bill.

Introduction 1062 – A Local Law to amend the administrative code of the city of New York, in relation to requiring the administration for children’s services to provide language classes to certain children in foster care

BDS strongly supports this bill without comments or recommendations.

Introduction 1374 – A Local Law to amend the administrative code of the city of New York, in relation to the utilization of preventive services

BDS strongly supports this bill to require reporting on the utilization of preventive services. However, we raise the following issues to the Council’s attention:

(1) We are concerned that the burden of reporting will fall on the preventive agencies to track and provide this data to ACS.
Preventive service agencies already are understaffed and loaded up with paperwork. We raise this issue in hopes that the Council will try to work with the agencies to ensure that the new reporting bill does not further limit the agencies’ ability to serve New York’s most vulnerable communities.

(2) ACS should be required to report on how many cases are voluntary versus mandated.
Preventive services are most successful when they remain voluntary and are community based. Data collection about voluntary versus mandated services would allow policymakers to assess which preventive programs have the most voluntary clients and whether incidences of ACS involvement are lower in those communities. We could also then assess how many clients avoid court when a preventive program is already involved or initiated early in the investigation.

(3) ACS should also track and report on data on the length of time between (1) when the court orders services, (2) the ACS referral to assignment of an agency, and (3) actual provision of services.
This recommendation seeks to gather data about the bureaucratic delays we discussed above.

(4) ACS should track and report on data specifically broken down by preventive service catchment areas, not just on preventive program types and slots.
This amendment will allow policymakers to see where preventive services are most utilized, where there may be waitlists for services, where there may be under-utilization and will help policymakers to determine sensible preventive service resource allocation.

(5) ACS should report how many families are receiving each of the services listed in 18 NYCRR 423.4(d)(1).
New York law requires that families receiving preventive services to prevent foster care placement have access to day care; homemaker services; parent training or parent aide; transportation; clinical services; respite care and services for families with HIV; emergency services, including cash or the equivalent thereto, goods and shelter; and the ACS Housing subsidy. Int. 1374 should be amended to ensure that ACS reports on how many families need each of these services and how many receive them.  This data should include not simply whether a family was referred to another agency to receive these services, but also whether the services were in fact provided and if not, what advocacy was done by the preventive agency to ensure service provision.

Conclusion
New York City’s progress in dramatically reducing the number of children in foster care over the past ten years has been possible through the increased availability of preventive services to families in need of support, earlier identification of such families, and greater accountability within the Family Court Systems to ensuring that appropriate service plans are put in place.  These trends must be applauded and not rolled back in response to recent child deaths.  We are grateful to the Council for your attention to preventive services and for offering legislation that seeks to shed light on how these services support families in need and limit the need for removal to the foster care system. Please do not hesitate to reach out to me at keconomos@bds.org or (347) 592-2554 with any questions.

[1] Center for New York City Affairs, The New School, Watching the Numbers:  A Six-Year Statistical Survey Monitoring New York City’s Child Welfare System (November 2016), available at https://static1.squarespace.com/static/53ee4f0be4b015b9c3690d84/t/5849a22f725e254385d753eb/1481220657883/FINAL_Watching+the+Numbers_2016.pdf.

[2] In our testimony submitted to this Committee in October, we noted that although most foster parents are well intentioned and provide a safe environment, there is overwhelming evidence of the negative outcomes of foster care placements.  Children placed in foster care are more likely to experience psychopathology than children who are not in foster care, with children in foster care being between 2.7 and 4.5 times more likely to be prescribed psychotropic medication than children not in foster care, according to one study.  Studies have found that rates of safety are actually worse for children in foster care than for those in family preservation programs.   For example, one study shows that children are actually twice as likely to die of abuse in foster care. New York State ranks the third worst for rates of substantiated or indicated reports of maltreatment of children in foster care.  Even these statistics are likely underestimations, as “abuse or neglect by foster parents is not investigated because agencies tolerate behavior from foster parents which would be unacceptable by birth parents.” Children who are on the margin of placement tend to have better outcomes when they remain at home as opposed to being placed in out-of-home care. In one study, a researcher looked at case records for more than 15,000 children, segregating the in-between cases where a real problem existed in the home, but the decision to remove could go either way. Despite the fact that the children who remained home did not get extraordinary help, on measure after measure the children left in their own homes fared better than comparably maltreated children placed in foster care. All of this evidence demonstrates that keeping children together with their parents, even within homes that are not ideal, is usually preferable to foster care placement. See Testimony of Brooklyn Defender Service and The Bronx Defenders before the NYC Council Committee on General Welfare October 31, 2016, pp. 5-6 (internal citations omitted).

[3] See, e.g., National Quality Improvement Center, Differential Response in Child Protective Services:  A Legal Analysis (Sept. 2009), available at http://www.ucdenver.edu/academics/colleges/medicalschool/departments/pediatrics/subs/can/DR/qicdr/General%20Resources/General%20Resources/docs/differential-response-in.pdf.

BDS EDUCATION UNIT SUPERVISING ATTORNEY KEREN FARKAS TESTIFIES BEFORE THE NEW YORK CITY COUNCIL ON EDUCATIONAL SERVICES FOR DETAINED AND PLACED YOUTH

TESTIMONY OF:

Keren Farkas – Supervising Attorney, Education Unit

BROOKLYN DEFENDER SERVICES

Presented before

The New York City Council Committees on Juvenile Justice, Education, and Fire and Criminal Justice Services

Oversight Hearing on

Educational Services for Detained and Placed Youth

November 30, 2016

My name is Keren Farkas. I am the head of Brooklyn Defender Services (BDS) education unit. BDS provides innovative, multi-disciplinary, and client-centered criminal, family, and immigration defense, as well as civil legal services, social work support and advocacy, for tens of thousands of clients in Brooklyn every year. I thank the City Council Committees on Juvenile Justice, Education, and Fire and Criminal Justice Services for the opportunity to testify today about the quality of educational services for detained and placed youth.

BDS is fortunate to have the support of the City Council, as well as other elected officials and the Office of Court Administration, to supplement the services we provide as a public defender office in Brooklyn.  We have developed a model of specialization to best represent certain types of clients, including adolescents.  Through specialized units of the office, we provide extensive wrap-around services that meet the needs of these traditionally under-served clients in a comprehensive way. This includes helping young people and their families navigate the public education bureaucracy during and after contact with the criminal justice and family court system.

BDS’ Education Unit provides legal representation and informal advocacy to our school-age clients. We work with young people impacted by the child welfare and criminal justice systems, including youth detained at Rikers, Horizons and Crossroads.  As a legal and social work team, we work to improve our clients’ access to education, and a significant portion of our advocacy relates to school discipline, special education, reentry and alternative pathways to graduation.

BDS is grateful to the City Council and Councilmember Dromm for introducing a new piece of legislation, Int. No. 1148, that would require the Department of Education to report to City Council about East River Academy. We support the legislation and hope the enhanced transparency will lead to better educational services and outcomes for youth at Rikers. I will conclude my testimony with several brief recommendations that we believe will strengthen Int. No. 1148. First, however, my comments will highlight the education barriers that we see our school age clients at Rikers Island experience.

Educational Services for Youth Incarcerated on Rikers Island
The best way that the City could help our youth would be to avoid sending them to Rikers, the horrors of which are well documented, and focus on diverting them from the criminal justice system altogether. However, in the interim, the City can do better to ensure that our young people obtain the education that they are entitled to under law.

First, I want to emphasize that we continuously find the Department of Education staff at East River Academy on Rikers Island to be caring and dedicated.  We see them treat our clients with respect and strive to do the very best that they can, particularly given the challenges that educating young people in a jail environment pose. Further, we are encouraged by the various improvements at East River Academy over the past year. These developments include enrollment increases among 18-21 year olds, greater access to vocational education, and targeted resources to address the school reentry challenges our clients face. We also understand that, starting next quarter, students at East River Academy can earn up to five, rather than three and half, credits per quarter. We attribute these improvements to DOE’s District 79 Leadership as well as collaboration from the DOE Adolescent Advisory Board, of which BDS is a member. That said, the following are our six areas of particular concern:

Problem 1: DOC Interference with Education Access
The majority of BDS’ 18-21 year old clients at Rikers are detained in the George Motchan Detention Center (GMDC). Young people at GMDC regularly report to us that they are not transported to school. We understand that corrections officers are required to call for each enrolled student in their housing unit and transport the student to the school floor. However, we often hear of breakdowns in this system. For instance, some clients have reported that the Corrections Officers do not call for students at all or pick up students late in the school day so they miss class time. Others report of frequent, sometimes multiple day, lock-downs, where all students are denied school access. Because DOC is not transparent about the frequency of the lock-downs, we cannot assess the extent that our clients are denied school hours, but we are concerned that it is significant.

We are also appalled that DOC deducts class time from out-of-cell time allotment for adolescents in Enhanced Supervision Housing (ESH), a highly restrictive new form of solitary confinement. This practice discourages youth in the ESH from pursuing their education.

We have also heard that DOC staff discourages clients from attending school due to concerns of violence between inmates during transport or at school. While there is an acknowledged problem of violence at Rikers that must be addressed, particularly at GMDC. DOC interference with the student’s decision to participate in school is neither appropriate nor the right solution to the problem. As an example, I will share a client story from last week:

A is serving a year sentence on Rikers Island. A explained to her BDS social worker that she feels frustrated because she feels as though DOCS is trying to push her out of school. Just last week they brought her paperwork to “sign herself out” of school. She told her social worker that she refused to sign them and continues to tell them that she wants to attend school. Apparently, DOCS has determined that her housing unit has problems with another unit. Because of this “beef” they won’t allow A’s housing unit to move when the other unit’s residents are on the school floor or in the hall. A was called last week for school but hasn’t been called since. She is frustrated as she is extremely motivated to attend school while she is in for the next several months, but will not be able to get an education, even though she has the time, if the guards refuse to take her to the school. A already has 15 credits towards her Regents Diploma.

We also have clients at GMDC who choose not to go to school at all because they are concerned about violence. Notably, our 16- and 17-year-old clients housed at the Robert N. Davoren Complex (RNDC) do not report similar barriers attending school, likely due in large part, to the fact that school attendance is mandatory for this age range.

Solution: The City should call upon DOC and DOE to decentralize the schools, particularly at GMDC, and allow young people who want to learn the opportunity to do so in their units.

Problem 2: Youth at OBCC do not even have a school that they can attend
BDS still has 18-21 year old clients at Otis Bantum Correctional Center (OBCC). While these young adults are school-age and many are interested in preparing for their High School Equivalency or Regents Diploma, East River Academy is not available at OBCC. Recently, several clients housed at OBCC have reported that they want to attend school, but have chosen to remain at OBCC, rather than transfer to GMDC, because of concerns of violence. In several instances, they were explicitly discouraged from transferring to GMDC by DOC staff, but not provided with an educational alternative at OBCC. Our clients should not have to choose between safety and school opportunity.

Solution: DOC should be required to create a school in any facility where youth are held, including OBCC.

Problem 3: Too many of our clients are significantly behind in their reading and math levels and require intervention to succeed in school
Many of our clients struggle in school because their reading and math skills are far below grade level. Reading is the building block of learning, and without it, our clients are at a terrible deficit that fosters recidivism, not opportunity. Likewise, limited math skills contribute to low self-confidence, leading to truancy and school disengagement.  East River Academy can be an opportunity to re-engage students in school and provide them with the building blocks to succeed. In order to break the cycle of incarceration and poverty, our clients need access to interventions that will provide additional and targeted support in reading and math skills. We are hopeful that the data that will be provided per Int. No. 1148 will help inform the need to allocate resources to fund these interventions.

Solution: The City Council should fund intensive, research-based remedial reading and math instruction, including additional staffing such as reading specialist positions at East River Academy, to ensure that all of the youth who attend have the opportunity to improve their basic reading and math skills.

Problem 4: Difficult for youth to accrue credits
The East River Academy can be an extremely positive motivator for our clients incarcerated on Rikers Island. When they learn a new skill or receive a certificate of achievement in school, they are proud of their accomplishments and feel excited to continue their education.

However, too many of our clients leave East River Academy empty handed, without academic credits despite participation in class and coursework. We find that this problem occurs for a variety of reasons. Sometimes transcripts are not appropriately or timely updated with notations of full or partial course completion. Difficulties also arise when students return to the community mid-year, because the community school system uses a two semester system while East River Academy now uses trimesters. The timing of a student’s arrival at East River Academy and return to the community can then dictate whether they will receive credits, even if they accrued a substantial amount of seat time. This is harmful as it confuses and discourages the youth. It also becomes wasted time that could have been spent working towards their high school diploma. Another problem students face is that foreign language and elective courses do not appear to be regularly offered. We hope that the additional resources targeted at reentry support will address this problem.

Solution: The City Council should direct the DOE to create guidelines on mid-year credit accumulation and make it possible for youth at East River Academy to obtain partial credits , even if a young person does not complete a module in its entirety.

Problem 5: Youth are often tracked or encouraged to pursue high school equivalency (HSE) courses, even if they are strong candidates for high school diplomas
BDS’s education team works diligently to place our clients in schools that meet their individual needs to ensure future academic success and end the cycle of poverty and incarceration. This advocacy includes our clients on Rikers Island.  We have helped many students enroll in community schools after finishing their time on Rikers, even those that are over-age and under credited.

While at East River Academy, we find that many of our clients are tracked or encouraged to pursue the HSE, rather than obtain their high school diploma. While we appreciate that HSE may be the appropriate choice for a significant number of students, many of our clients express that they would prefer to pursue their high school diploma. With the credit recovery options in the community, including transfer schools, Young Adult Boroughs Centers and some specialized charter schools, it is possible for an over-age under credited student to earn a Regents Diploma. Further, we find that our clients who are connected with the specialized credit recovery schools upon reentry find supportive school settings that can be critical in helping the youth to forge a new path for herself when she returns to the community.

Solution: The counselors at East River Academy should be encouraged to discuss the benefits of high school diplomas with all enrolled students. The City should collaborate with the newly launched Youth Reentry Network to ensure that all youth at East River Academy have access to reentry services, including support and encouragement to continue their education upon return to their communities.

Problem 6: Guards use pepper spray against our clients in the classroom
BDS staff has received multiple reports of students in East River Academy being sprayed with MK9 pepper spray by guards. Our clients report that the spray spreads through the entire school, disrupting class and movement. School counselors have complained as well. It is our experience that MK9 pepper spray can be harmful and is used far too liberally as a matter of first resort, rather than once all other options for managing a situation have been considered.

Solution: The City Council should ban the use of pepper spray in all DOC facilities, or at the very least, correction staff should not be allowed to use MK9 in East River Academy.  Pepper spray is harmful to the students and staff and not conducive to a healthy school environment that inspires learning.

Int. 1148
BDS supports Int. No. 1148. The bill will go a long way towards improving DOE reporting to provide the Council and the public with important information about the quality and parity of education that youth receive at the East River Academy.

We have several brief suggestions to strengthen the Bill:

Suggestions 1: Specifying Use of Force – In Sections 8-11, the bill requires the DOE to report on incidents of use of force during educational programming. As currently written, the definitions of use of force within a single category vary widely. For example, use of force A can mean a chipped tooth or a ruptured spleen, which are very different injuries. Instead of reporting “use of force A” the DOE should be required to report the injury with greater specificity. See 9-141(b)(8-11).

Suggestion 2: Diploma vs. High School Equivalency Track – We appreciate the request for information regarding achievement of HSE and Regents Diploma in Sections 12-14. We suggest modifying the language in Section 12 to specify whether a Regents Diploma was achieved and whether one of the “safety net” options were utilized. Additionally, the DOE should report the percentage of adolescents and young adults, respectively, on the Regents Diploma vs. HSE track.

Suggestion 3: Attendance and Participation– The information requested regarding enrollment in sections 1-2 and 16-17 will be illuminating. We ask the DOE to also report on attendance of enrolled adolescents and young adults. Sections 18-19 reference to “participation” may be encompassing attendance. If so, we suggest “participating” be clearly defined in the Definitions section.

Suggestion 4: Teacher to student ratio – In addition to data regarding teacher to student ratio, as noted in Section 22, the DOE should be required to report on the absolute number and ratios of special education teachers, paraprofessionals, reading specialists and related service providers.

Suggestion 5: Credit Accrual – We appreciate the request for data about credit accumulation in Section 25. Because credit accrual has historically been a confusing and difficult matter for students at East River Academy, we ask that “sufficient period of time,” be defined. We also ask that the DOE report on the average and median seat time accrued by students who were not present for the “sufficient period of time.”

Suggestion 6: Special Education at East River Academy – Greater transparency regarding special education services is certainly needed. In addition to the information already requested, which should be updated to refer to Special Education Plan (SEP), we ask the DOE to specify the (1) the number of students entering with an IEP, (2) the number of students who received an initial special education evaluation while at East River Academy, (3) the number of students recommended for specific services, including classroom settings and related services, and (4) the classifications of students at East River Academy. We hope this information will help ensure the appropriate resources are provided to meet the needs of special education students at East River Academy.

Conclusion
Thank you for your consideration of my comments. I am grateful to the Council for inviting me to testify about the challenges that my incarcerated youth clients find in accessing educational services on Rikers.  Please do not hesitate to reach out to me with any questions about these or other issues at (718) 254-0700 (ext. 292) or kfarkas@bds.org.

BDS CIVIL JUSTICE SUPERVISING ATTORNEY BILL BRYAN TESTIFIES BEFORE THE NEW YORK CITY COUNCIL ON THE NUISANCE ABATEMENT FAIRNESS ACT

TESTIMONY OF:

Bill Bryan – Supervising Attorney, Civil Justice Practice

BROOKLYN DEFENDER SERVICES

Presented before

The New York City Council

Committee on Public Safety

Hearing on the Nuisance Abatement Fairness Act

November 2, 2016

My name is Bill Bryan and I am a Supervising Attorney in the Civil Justice Practice at Brooklyn Defender Services (BDS). Thank you for this opportunity to address the New York City Council Committee on Public Safety.  BDS provides multi-disciplinary and client-centered criminal, family, and immigration defense, as well as civil legal services, social work support and advocacy, to tens of thousands of clients in Brooklyn every year. We thank the New York City Council for moving to protect New Yorkers from the harms of so-called nuisance abatement and padlock laws. We believe the Nuisance Abatement Fairness Act includes many critical improvements to the City’s Nuisance Abatement Law.

Public Nuisance Abatement, a little-known provision of the NYC Administrative Code, was ostensibly created to assist in the shuttering of illegal gambling and sex industry in Times Square. However, it has since evolved into a law enforcement tool to circumvent the due process protections of New York’s Landlord-Tenant Laws and deprive citizens of access to their homes. The ProPublica/Daily News report published in February 2016 shed light on what attorneys in BDS’ civil justice practice have seen for years: that these laws disenfranchise mostly low-income New Yorkers of color, break up families, and punish entire households for allegations that are often unsubstantiated or wholly dismissed by our criminal and civil courts. ProPublica found that 98% of the nuisance abatement actions that occurred over 18 months targeted people of color. While the NYPD is ultimately responsible for affirmatively enforcing these laws in such a flagrantly racially disparate manner, it is New York City’s nuisance abatement laws, as currently written, that have allowed for years of unchecked abuse and unmitigated harm to some of New York’s most vulnerable communities.

Nuisance abatement actions are not being filed in emergency situations where the city is without another remedy to halt alleged conduct. Indeed, we routinely see these cases filed where a client’s tenancy, and possibly their guilt or innocence, has withstood two other proceedings on the same set of facts–for example, first a criminal proceeding and then a NYCHA termination proceeding. These actions, based upon the same circumstances as an arrest, are often filed long after a criminal case has finished, leaving tenants without legal representation or even advice about their rights or options. In our experience, these cases seem intentionally geared to taking advantage of pro se litigants.  One way of assessing this phenomenon would be to analyze how many of the filed cases have not settled with an attorney on both sides.  This doubling (and in some case tripling up) of cases on the same facts and circumstances is not a good use of resources on the side of the court, the NYPD or the tenants, who disproportionately suffer from this expenditure of resources by missing work and/or medical appointments.

Ultimately, BDS believes that the NYPD should not be in the business of evicting people from their homes. We also believe that the criminalization of drug use, which underlies many nuisance abatement actions, is the cause of much of the associated social problems, not the solution. Making people homeless and breaking up families, as an auxiliary of criminalization, is at best a horribly destructive crime reduction strategy, and at worst, a counterproductive, criminogenic attack on low-income communities of color. The term “nuisance abatement” is misleading; the NYPD’s mandatory exclusions of loved ones and evictions simply relocate any nuisances that may be present. The sex industry that once was centered in Times Square has not abated; it has simply migrated into other communities and online.

More concerning, these cases are filed seemingly with the sole purpose of fishing for default judgments. In every case where an attorney from our office has answered a public nuisance complaint, the NYPD has backpedaled and been willing to settle the matter with a simple “do not engage in criminal activity” stipulation. While this practice is arguably functional for those who are represented by an attorney, the vast majority of tenants facing these types of procedurally complicated, high-stakes proceedings are unrepresented. The immediate disposal of the cases we fight calls into question the good faith in which they are brought. Yet when a tenant fails to answer, the NYPD invariably moves forward with a lockout.

These NYPD-initiated proceedings are another burden on tenants’ time, limited resources, and shelter, without a clear benefit to The City. They are being utilized in a way that conflicts with the stated purpose of the law. For a program that claims to exist to help stabilize neighborhoods, these tools serve only to further alienate vulnerable citizens and erode public trust in law enforcement in communities of color.

These cases should not be used as fishing expeditions to try to get enhanced discovery or hold tenants (who may or may not be guilty) to perpetually binding probationary-style stipulations.

BDS is grateful to the City Council for bringing these laws to light and introducing a variety of changes that we hope will require the NYPD to dramatically reduce their use of nuisance abatements.  There are a few provisions that would benefit from small but important adjustments. We list below our assessment of each bill, with specific comments or suggestions for each.

 

Responses to Proposed Legislation
(1) No. 1308 (The Speaker, Council Member Johnson, and the Public Advocate) — A Local Law to amend the administrative code of the city of New York, in relation to repealing sections of the nuisance abatement law permitting certain forms of injunctive relief

We strongly support this legislation, which would eliminate temporary closing orders, or ex parte orders through which the NYPD evicts New Yorkers without giving them any chance to defend themselves.

These closing orders are the most egregious practice in the nuisance abatement law as currently written, especially when applied to residential closings. Every client we have seen who has suffered an unexpected and unannounced closing is left reeling, homeless, and desperate, and is often willing to do anything, or sign anything, to get back into their home as quickly as possible. The coercive nature of settlements offered in order to resolve a temporary closing order cannot be overstated. If nothing else passes, this change is imperative because it means the person stays in their home, due process is maintained, and they can be removed from their home only after the NYPD meets their burden and the tenant(s) are given a meaningful opportunity to be heard. When a tenant, and their family, are still in their home, they are less likely to agree to exclude a loved one as a condition of reentry.  This provision alone may help to keep vulnerable families together.

(2) No. 1315 (Council Member Garodnick and The Speaker) – A Local Law to amend the administrative code of the city of New York, in relation to resolving conflicts between the nuisance abatement law and related proceedings
This is a useful provision limiting the amount of cases filed.  It must be noted that the city also files these cases based on allegations in NYCHA apartments. Thus, it may be necessary, to meet the goals of this amendment, to require corporation counsel to inquire whether NYCHA is already seeking termination of tenancy or permanent exclusion based upon the same conduct.

The term “similar legal proceedings” is vague and confusing. In almost every residential action, we see criminal charges filed based upon the same conduct that forms the basis of the nuisance abatement action. Does the Council intend for this amendment to completely foreclose the possibility of these actions in such cases? If so, we applaud this measure. If “similar” is going to be more narrowly defined to mean that a nuisance abatement alleging repeated drug sales can go forward if the criminal case didn’t seek closure of the apartment, then it is unnecessary, as this will never be an issue in a criminal proceeding.

(3) No. 1317 (Council Member Gibson and The Speaker) – A Local Law to amend the administrative code of the city of New York, in relation to excluding possession of a controlled substance or marihuana from the nuisance abatement law and increasing the number of sales of controlled substances sufficient to create a nuisance
We strongly support this legislation, which would end the use of nuisance abatements against New Yorkers accused of low-level drug offenses. As stated above, such behaviors do not belong in the criminal justice system, and they certainly do not warrant evictions or exclusions by the NYPD. Among the communities where these offenses are most commonly enforced, stable housing is a critical resource. The New York State Office Alcohol and Substance Abuse Services has found that “safe, affordable housing and stable living-wage employment are fundamental to successful long-term recovery.” Household-wide evictions and exclusions of loved ones are fundamentally inappropriate responses to suspected drug use.

(4) No. 1318 (Council Member Grodenchick, Johnson, and The Speaker)A Local Law to amend the administrative code of the city of New York, in relation to requiring verification of a nuisance prior to enforcing injunctive relief pursuant to the nuisance abatement law
We appreciate the Council’s focus on the question of whether the alleged conduct precipitating a nuisance abatement is ongoing. As was reported by ProPublica, often, it is not. With this change, even the granting of a closing order is not a guarantee that it can be enforced. By requiring the NYPD to independently verify the situation hasn’t changed before they enforce the court’s order, it allows an individual locked out of their home to challenge not only the underlying lockout but also the NYPD’s decision to enforce it at the time, and in the manner that they do.

While ensuring that the NYPD complies with this verification requirement, especially where respondents are unrepresented, will be difficult, this legislation provides an additional remedy and protection to affected residents. By adding a layer of discretion in enforcement, this change will remove the ability of the NYPD to claim they are merely enforcing a court order.

As referenced in the discussion of closing orders, once an injunction is enforced and a family is removed from their home, the bargaining power of the parties in negotiating settlement drastically changes, especially for pro se residents. Every time a closing order is enforced where there is a possibility that the alleged nuisance has been ameliorated or the offending party has vacated, the risk increases that innocent residents will permanently lose their homes or exclude innocent loved ones.

We hope this change will have the effect intended and put a stop to evictions where the alleged misconduct is no longer occurring. As always, we are available to discuss possible amendments to help strengthen this legislation.

(5) No. 1320 (Council Member Johnson and The Speaker)A Local Law to amend the administrative code of the city of New York, in relation requiring laboratory reports in drug-related nuisance abatement cases
We strongly support this legislation. Most of our clients who are charged with possession of a controlled substance are prosecuted based on “the experience and expertise” of the arresting officers. Many marijuana arrests are predicated on field tests. A recent ProPublica investigation into the widespread reliance on such cheap field tests for controlled substances by inadequately trained police officers in scientifically unsound conditions. The outlet estimates that “every year at least 100,000 people nationwide plead guilty to drug-possession charges that rely on field-test results.” In response, the Safariland Group, the largest manufacturer of the test kits, released a statement that “field tests are specifically not intended to be used as a factor in the decision to prosecute or convict a suspect…Our training materials and instructions make it clear that every test kit, whether positive or negative, should be confirmed by an independent laboratory.”[1] Positive findings in proper laboratory tests should be a prerequisite in any criminal conviction for an offense relating to controlled substances. Requiring them in nuisance abatement proceedings is an important step in the right direction, though I must reiterate that drug charges should not precipitate an eviction by the NYPD or any other city agency, regardless of the lab findings.

This change is necessary not just to ensure the substance alleged actually was illegal, or to encourage the NYPD to conduct laboratory testing, but also to ensure they don’t ignore and omit previously conducted negative lab results and simply allege drugs were found based solely on disproven arrest records. So long as judges understand and enforce the requirement of lab reports, this change has the potential to limit many of the most egregiously frivolous filings.

(6) No. 1321 (Council Member Johnson and The Speaker) — A Local Law to amend the administrative code of the city of New York, in relation to requiring a police or peace officer to personally witness a drug violation to file an action under the nuisance abatement law
We support this legislation. We note, however, the NYPD, and at least one local District Attorney, lack any accountability measures to ensure police officers do not falsely represent to a court that they have witnessed an offense; in one case involving a BDS client, a judge found that three officers in the 67th Precinct had perjured themselves in court, yet they remain on the beat and the District Attorney apparently continues to rely on their word for prosecutions.[2] That said, this legislation could give our civil attorneys the opportunity to cross-examine the police officer who served as a witness in the criminal case.

(7) 1323 – By Council Member Koslowitz and The Speaker (Council Member Mark-Viverito) — A Local Law to amend the administrative code of the city of New York, in relation to prohibiting permanent exclusions pursuant to the nuisance abatement law.
BDS supports this bill’s intention of limiting the harm of exclusion to one year for individuals who are named in nuisance abatement actions (or up to three years if corporation counsel can demonstrate through clear and convincing evidence that unique circumstances exist such that a greater period up to 3 years is required to abate the nuisance).

However, in our experience, whether a bar excluding someone from their home or business is one or two of three years is irrelevant to our clients, all of whom are tenants. In practice, New York City landlords evict the leaseholder at the point of the nuisance abatement and find a new tenant. Once evicted, the exclusion is de facto lifted because our clients no longer have access to their home.  The ProPublica/Daily News report noted that tenants and homeowners lost or had already left homes in three-quarters of the 337 cases where they were able to determine the outcome. The other cases were either withdrawn without explanation, were missing settlements, or were still active.[3] The ProPublica data backs up our experience representing clients – that this reform, while well-intentioned, would not protect the vast majority of people facing nuisance abatement actions.

Furthermore, the law is not explicit that any settlement reached after a nuisance abatement action is filed must be reviewed and signed off on by the presiding judge. While decisions rarely result in permanent exclusion, the NYPD often asks for such exclusion as a condition of dismissing the case. Even if a court disposition cannot exceed one or three years, that would not stop the NYPD from facilitating a tenant’s voluntary agreement to permanently exclude an individual in exchange for dismissal.

For these reasons, we would ask the Council to look for alternate means to strengthen this bill.  As always, we are available to assist in amending the bill to go further to accomplish its stated aims.

(8) 1326 – By Council Members Levin, Torres, Williams, and The Speaker (Council Member Mark-Viverito) – A Local Law to amend the administrative code of the city of New York, in relation to repealing the padlock law.
BDS strongly supports repeal of the Padlock Law, which permits the NYPD to close a residence or business housing illicit activities after two offenses and one conviction without a judicial order. According to the Council, the NYPD has not used this draconian remedy for more than 15 years, and this bill will permanently abolish it. We have never heard of this law being used in Brooklyn, though we rarely represent clients with stores and generally only represent tenants.

The Padlock Law set a much lower standard for closing a residence or business than the nuisance abatement process and granted nearly unfettered power to the NYPD that unsurprisingly resulted in abuse. The Council’s wholesale repeal of the law recognizes the importance of due process and rejects granting the NYPD broad authority to act without judicial oversight.

(9) 1327 – By Council Members Levine, Gibson, Johnson, and The Speaker (Council Member Mark-Viverito) – A Local Law to amend the administrative code of the city of New York, in relation to requiring reporting on the use of the nuisance abatement law.
BDS strongly supports this reporting bill. We believe it is also encouraging to see the Council pursuing substantive reform at the same time as they require reporting on these practices. We hope the data will allow for meaningful review and oversight of the effect these changes have on these practices and lead to further amendments as necessary.

(10) Proposed Int. 1333-A – in relation to establishing a statute of limitations for the nuisance abatement law and repealing provisions of the nuisance abatement law that define some types of nuisances.
BDS strongly supports the creation of a statute of limitations of four months for filing nuisance abatement actions. As the New York Court of Appeals appropriately noted, statutes of limitations are valuable because they “protect individuals from having to defend themselves against charges when the basic facts may have become obscured by the passage of time” and they “encourag[e] law enforcement officials [to] promptly investigate suspected… activity.”[4]

(11) 1338 – By Council Members Salamanca, Johnson, and The Speaker (Council Member Mark-Viverito) – A Local Law to amend the administrative code of the city of New York, in relation to requiring procedures for the corporation counsel when filing actions under the nuisance abatement law.
BDS strongly supports the Council’s objective to preclude the NYPD from filing actions based on sealed records but we do not believe this bill, as written, will accomplish this goal. Our Criminal Procedure Law already precludes the NYPD from relying on sealed records in subsequent legal proceedings. Thus, if anything, this bill really only reiterates what the small number of New Yorkers who challenge these cases with legal assistance will already be aware of. For the City Council’s bill to have any force in protecting pro se litigants, there would need to be a penalty for use of sealed records or put in a requirement that no closing order will be granted unless the NYPD make showing that none of the enumerated allegations resulted in favorable dispositions with sealed records. This would then put the onus on the judge to check each factual allegation before signing a closing order.

Arrest and court records in cases that are dismissed are already sealed by operation of law. Yet the NYPD routinely files public nuisance abatement cases based exclusively on these records months after they have been sealed. Where an individual is pro se they may be locked out of their home or agree to exclude family members based upon a court action that directly contradicts the purpose of the sealing laws explicitly aimed at rendering the arrest a nullity. These laws are intended to be so strong, despite the NYPD’s refusal to follow them, that an individual whose case has been dismissed is entitled to state under oath that they have never been arrested.  Yet the NYPD is routinely seeking to evict the most vulnerable citizens based entirely on these arrests that, by operation of law, never occurred. The NYPD attorneys, in effect, are violating the law each time they file one of these cases based upon sealed records.

Perhaps not surprisingly, but infuriatingly, the NYPD is usually willing to settle cases based on sealed records when confronted on the issue by an attorney, but the cases where new Yorker’s who are supposed to be protected by these laws can retain counsel are few and far between. For every case we successfully settle due to the existence of sealed records, there are countless more that the City is prosecuting against pro se individuals. ProPublica found that only 22% of those without lawyers reached settlements with police that allowed them to keep their apartments without barring anyone, versus 43% of tenants with lawyers.[5] In our experience, representation by counsel is often the difference between staying in your home or not.

The NYPD practice of knowingly using sealed records and prosecuting claims based solely on sealed records continues. The NYPD should be required to take steps to comply with state law and implement some measures to ensure records that should be sealed are no longer accessible and that any records copied or sent to other agencies or entities are destroyed.

This bill will not create any greater incentive for the NYPD to comply with existing law. Our office is happy to work with the Council to explore further what kind of language would actually accomplish the bill’s intent.

We also support the second provision of Int. 1338, which would require that agencies seeking nuisance abatements provided defendants with “personal service upon a natural person as provided in the civil practice law and rules.”

This change, similar to the removal of the provisions permitting temporary closing orders, will go a long way in ensuring that residents are not locked out of their homes without any notification or before any opportunity to confront the allegations against them.

(12) 1339 – By Council Member Torres and The Speaker (Council Member Mark-Viverito) – A Local Law to amend the administrative code of the city of New York, in relation to restricting certain orders and dispositions pursuant to the nuisance abatement law.
BDS strongly supports this bill. This legislation will restrict any action enforced pursuant to the Nuisance Abatement Law to only the least restrictive remedy, meaning that a judge could evict a person or shutter a residence only if there were no less burdensome means of ceasing the nuisance. This bill would also prohibit the application of this law from restricting the rights of any person who was not aware or had no reason to be aware of a nuisance.

Again, we support the Council’s efforts to ensure these laws are used and injunctions are enforced only where necessary, but these laws were already drafted, and allegedly used, only where there were no less restrictive means available. Nonetheless, closing orders, voluntary exclusions and homelessness resulted in an extremely large percentage of cases. Presumably the judges who signed these orders are persuaded by the City’s language concerning imminent risk to the health, safety, and welfare of the public. Implied in the inflammatory language that is standard in these filings is the fact that no other means are available to curb the practices alleged.

That said, the Council is taking a strong stand with this package of legislation, sending a clear message that nuisance abatement actions are generally not an appropriate remedy.

(13) 1344 – By Council Member Williams and The Speaker (Council Member Mark-Viverito) – A Local Law to amend the administrative code of the city of New York, in relation to reforming the nuisance abatement law regarding the alcoholic beverage control law.
BDS supports this bill, which adds protections for those facing nuisance abatement cases involving violations of the State’s ABC Law. The bill would require 4 violations of this law to constitute a “nuisance” and restrict these violations to only those in which a reasonable person in the position of the person violating the law would have been aware of such violation. The bill also restricts the application of this portion of the Nuisance Abatement Law to “continued, willful, and flagrant” violations.

We recommend that the City apply the proposed language allowing a defense of a reasonable person without knowledge of the violation to all other nuisance abatement cases, not just those involving violations of the ABC Law.

Conclusion
Thank you for considering my comments. BDS looks forward to continuing to work with the Council to make our criminal justice system more fair, effective and humane. If you have any questions, please contact me at bbryan@bds.org or (718) 254-0700 x 351.

[1] Ryan Gabrielson & Topher Sanders, Busted: Common Roadside Drug Test Routinely Produces False Positives, ProPublica, July 7, 2016, available at https://www.propublica.org/article/common-roadside-drug-test-routinely-produces-false-positives.

[2] Nick Pinto, The Incredibles: Judges Said These Cops Can’t Be Trusted, So Why Does the D.A. Rely on Them?, The Village Voice, Nov. 1, 2016, available at http://www.villagevoice.com/news/the-incredibles-judges-said-these-cops-cant-be-trusted-so-why-does-the-da-rely-on-them-9292168.

[3] Sarah Ryley, No Conviction Home, NY Daily News, Feb. 5, 2016, available at http://interactive.nydailynews.com/2016/02/nypd-nuisance-abatement-actions-boot-hundreds/.

[4] Toussie v. United States, 397 U.S. 112, 114-15, as cited in People v. Seda, 93 NY 2d 307, 311 (N.Y. 1999).

[5] Ryley, No Conviction Home.

BDS FAMILY DEFENSE DIRECTOR LAUREN SHAPIRO SUBMITS TESTIMONY WITH THE BRONX DEFENDERS’ FAMILY DEFENSE MANAGING DIRECTOR EMMA KETTERINGHAM TO THE NEW YORK CITY COUNCIL ON CHILD WELFARE PROCEEDINGS

TESTIMONY OF:

Lauren Shapiro

Director, Family Defense Practice

BROOKLYN DEFENDER SERVICES

 

Emma S. Ketteringham

Managing Director, Family Defense Practice

THE BRONX DEFENDERS

 

Presented before

The New York City Council

Committee on General Welfare

Oversight Hearing on

Child Abuse Cases and the Various City Touchpoints for Families

 October 31, 2016

Lauren Shapiro is the Director of the Family Defense Practice at Brooklyn Defender Services (BDS) and Emma Ketteringham is the Managing Director of the Family Defense Practice at The Bronx Defenders (BXD).  Both BDS and BXD are public defender organizations that provide inter-disciplinary, holistic, client-centered representation in the areas of criminal, family, and immigration defense, as well as civil legal services, for tens of thousands of clients every year. The Family Defense practices together have represented more than 16,000 clients since their inception in 2007 and have helped thousands of children either remain safely at home with their families or leave foster care and safely reunite with their families.  Our attorneys, social workers and parent advocates are in the field every day interacting directly with Child Protective Service and foster care agency workers.

We thank the New York City Council Committee on General Welfare and, in particular, Chair Stephen Levin, for the opportunity to testify today about the points at which child-welfare involved families interact with various City services.  The Administration for Children’s Services (ACS) affects the lives of thousands of children each year – most of whom are low income and African American or Latina – and it is critical that the City Council regularly review and monitor ACS and ensure that it remains accountable for its actions.  At the same time, we appreciate the efforts of the many hard-working staff at ACS and recognize the enormity and complexity of their charge to protect the safety of children while at the same time make efforts to give families the help and services they need to remain together.

Recognizing the Role of Poverty in Child Welfare Cases
In setting and implementing child welfare policy, policymakers must keep in mind what stories in the media ignore: that the vast majority of child welfare cases in Family Court involve allegations of neglect, not abuse, and almost all child welfare cases are related to poverty and the stress that poverty brings to families struggling to survive.[1]  While we are making a number of substantive recommendations in our testimony today, we believe that any conversation about the so-called “failures of the child welfare system” must begin and end with the understanding that the vast majority of families would never become involved with the child welfare system but for their poverty.  Most parents and caregivers become involved with child welfare because of allegations related to failing to provide adequate food, shelter, medical care or child care– reflecting conditions of poverty rather than parental failure or ill will.  Studies have shown that families who are “below the poverty line are 22 times more likely to be involved in the child protection system than families with incomes slightly above it.”[2]  In 2014, the journal Pediatrics published a nationwide study conducted by Cornell University that further clarified the links between poverty and child welfare.[3]   John Eckenrode, one of the study’s authors, found that “reducing poverty and inequality would be the single most effective way to prevent maltreatment of children.”[4]  Indeed, “poverty—not the kind or severity of child mistreatment—is the leading predictor of both placement into foster care and the amount of time that children spend” separated from their parents.[5]

Racial Disparities in the Child Welfare System
The families that populate the child protection system are also disproportionately families of color.  The child welfare system remains once of the most racially segregated institutions in American and the racial disparity of children in foster care must be considered as we fashion changes to the system.  For more than a decade, black children have made up the majority of children in the United States child protection system, despite making up a relatively small portion of the nation’s population. A national study of child protective services by the U.S. Department of Health and Human Services reported that “[m]inority children, and in particular African American children, are more likely to be in foster care placement than receive in-home services, even when they have the same problems and characteristics as white children.”[6]  While racial disproportionality exists in foster care nationally, statistics from New York City illuminate the extent to which foster care placements are concentrated in poor communities of color:  “In 2008, African American children accounted for 27 percent of the children under the age of eighteen in the city but comprised a staggering 57.1 percent of the foster care population. In contrast, 24 percent of the children under age eighteen in New York City were white, but white children comprised only 4 percent of the foster care population.”[7] Data released by ACS for 2013 was nearly identical to the 2008 data.[8]

Family Preservation Should Remain the Priority because Children do Better Overall Remaining with their Families than when they are Placed in Foster Care
Singling out horrific cases and focusing on increased surveillance of families rarely results in the kind of thoughtful reforms that keep children safe and families strong.  A response to Zymere Perkin’s tragic death that relies upon increased reporting, investigations and removals of children from their homes will further reinforce the vulnerability of the families in the system and contribute to the system’s racial disparity. This approach will also lead to the abandonment of the government’s legal and moral obligation to ensure that children are not wrongfully removed from their families and communities; it will be at the expense of opportunities to make the deeper, more systemic changes that will save and improve the lives of the majority of New York City’s children.

Although most foster parents are well intentioned and provide a safe environment, there is overwhelming evidence of the negative outcomes of foster care placements. As the VERA Institute of Justice noted, “research shows that entry into foster care raises the risk of long-term adverse effects on children compared to socioeconomically similar children who are not removed, including poor school performance, homelessness, arrest, chemical dependency, and mental and physical illness.”[9]  In the words of Molly McGrath Tierney, Director of the Baltimore City Department of Social Services: “Awful things happen to children in foster care. Short-term, their outcomes for important things like health and education are abysmal and long-term, it just gets worse. Kids that grew up in foster care [are] overwhelmingly destined for the penitentiary.”[10]

Children placed in foster care are more likely to experience psychopathology than children who are not in foster care, with children in foster care being between 2.7 and 4.5 times more likely to be prescribed psychotropic medication than children not in foster care, according to one study..[11]  Studies have found that rates of safety are actually worse for children in foster care than for those in family preservation programs.   For example, one study shows that children are actually twice as likely to die of abuse in foster care.[12]  New York State ranks the third worst for rates of substantiated or indicated reports of maltreatment of children in foster care.  Even these statistics are likely underestimations, as “abuse or neglect by foster parents is not investigated because agencies tolerate behavior from foster parents which would be unacceptable by birth parents.”[13]

Child-protection-involved children tend to leave foster care with more problems than when they entered care. Children exiting foster care have significantly more behavioral problems when compared with their own pre-placement measures of adaptation. Former foster children experience additional negative life outcomes, including higher teen birth rates and lower career earnings.[14]  Former foster children are also disproportionately likely to experience homelessness compared to the general population.[15]

Children who are on the margin of placement tend to have better outcomes when they remain at home as opposed to being placed in out-of-home care. In one study, a researcher looked at case records for more than 15,000 children, segregating the in-between cases where a real problem existed in the home, but the decision to remove could go either way.[16]  Despite the fact that the children who remained home did not get extraordinary help, on measure after measure the children left in their own homes fared better than comparably maltreated children placed in foster care. All of this evidence demonstrates that keeping children together with their parents, even within homes that are not ideal, is usually preferable to foster care placement.[17]

The adverse consequences of removal can be reduced by placing children who have been removed from their homes with relatives rather than in foster care with strangers. Children fostered by relatives—known as “kinship care”—have fewer behavioral problems than their foster care counterparts.[18]  They also demonstrate better development and better mental health functioning than children in non-kinship foster care.[19] Additionally, children cared for by relatives experience fewer disruptions and a better quality of life while in care: they have fewer placement moves, are more likely to remain in their own school, and are more likely to report liking their placement and wanting it to become permanent.[20]  However, most foster children are not placed with relatives; ACS reports that only a third of children in foster care in New York City are placed in kinship care.[21]  An approach that does not recognize how critical one’s family and home life are to healthy human development, even when troubled or full of challenges and adversity, harms rather than improves the welfare of children and families.

ACS Should Continue Policies to Reduce the Foster Care Census
ACS has worked diligently and successfully to reduce the number of children in foster care in all five boroughs over the past ten years. Since 2007, when the institutional providers for parent representation in New York City were created, the foster care census has been reduced from over 17,000 to under 9,000 children as of October 2016. We must continue in this direction, and not roll back any gains. Notably, there has been no evidence or indication of an increased occurrence in child abuse as the foster care census has dropped. This progress has been possible through the increased availability of preventive services to families in need of support, earlier identification of such families, and greater accountability within the Family Court Systems to ensuring that appropriate service plans are put in place.  These trends must be applauded and not rolled back in response to Zymere Perkin’s tragic death.

The City Must Not Implement Policies That Will Exacerbate the Vulnerability of Families
Since Zymere’s death last month, we have already seen a dramatic and frightening impact on our practices and the lives of child-welfare involved families in New York City. In the last few weeks, the number of emergency and court removals of children has increased, the filings of neglect cases have nearly doubled, and even important decisions about visitation and reunification of families are being affected by the current climate of fear to the detriment of many children.  We have received phone calls from fearful parents who have been investigated in the middle of the night and had their children roused from deep sleep and questioned based on non-emergency concerns.

Instead of relying on surveillance and removals and making the approach to working with the city’s poorest families more punitive, the City should be employing a strategy that encourages families to seek and get the help that they need to take care of their children.  When ACS reacts as they are now out of fear, seeking more removals and pitting case workers against parents in court proceedings, it has the effect of discouraging parents from seeking the help that they need.  For example, in Brooklyn last week, ACS received a call from a mother who stated she was overwhelmed, and was asking for help.  Instead of providing her with assistance, they removed her son, separated the family for three days, and came to court to seek approval to place her son with strangers in foster care.  Cases like this show parents that, when they need help, they cannot count on the city’s administration to provide it to them.  It instead encourages them to isolate and avoid seeking assistance and the help they need to address any risk to their children.  This only worsens outcomes for children.

Recommendations

(1) Continue And Expand ACS’s Commitment To Preventive Services
BXD and BDS strongly support increased funding for preventive services to avoid the need for children to be placed in foster care and to reduce the time children spend in care. In large measure, preventive service programs helped reduce the foster care population from almost 40,000 in 1999 to under 10,000 in New York City today. Keeping families together and children in their homes and communities with services in place, instead of placing children in foster care, prevents the harm and trauma of removing children from their families while saving tax-payer money. We also believe that preventive service programs can and should be delivered more effectively to help families provide safe and stable homes for their children and to reduce the number of children who enter foster care.

For more information and specific recommendations about ACS’s provision of preventive services, please see BDS’s testimony before this committee on March 17, 2015. A copy is available online at: http://bds.org/testimony-before-new-york-city-council-on-acs-dhs-preliminary-fy2016-budget/.

(2) ACS Should Transition To A System Where Child Protective Workers Are Required To Have Social Work Degrees
Child protective workers who conduct initial investigations must make vital assessments about the complex issues many families face, such as domestic violence, mental illness, and substance abuse.  ACS child protective workers rarely have the credentials of a social work degree and are not adequately trained to make such determinations. They also may lack the expertise and time to help parents navigate complex bureaucracies, such as public assistance, housing, the shelter system, childcare assistance, Medicaid and the Department of Education. This lack of expertise can result in misguided decision-making and improper advice given to families, which jeopardizes family stability. Front-line staff must have adequate training and preparation to be able to truly help families.

Since the late 1980s studies have found that workers with either a BSW or MSW degree in social work have better outcomes than child protective workers in the same jobs who hold non-social work degrees.[22] They received higher performance ratings from supervisors, especially in complex cases; were more effective in permanency planning; remained in the employ of agencies longer; felt safer making home visits alone; and spent less time on paperwork than their non-social work degreed counterparts.[23]  Social workers have specific skills and knowledge in working with individuals, families, groups, organizations and communities that grounds the social worker in a much broader understanding of client needs.

Recommendation: Our experiences in the Bronx and Brooklyn are in line with national research and lead us to believe that ACS should prioritize hiring trained, credentialed social workers for child protective positions.

(3) The Housing Crisis In New York City Must Be Addressed And ACS Should Help Homeless Families And Families Living In Unsafe Housing Conditions.
Over a third of our clients live in unsafe housing, family shelters, doubled up, and/or are moving from place to place. Addressing the affordable housing crisis is critical to addressing homelessness and its attendant risks to children.[24]  The data and research on the experiences of homeless children shows that homelessness creates risks to the physical and emotional well-being and educational success of children. For example, children experiencing homelessness have an increased risk of illness compared to children who are not homeless, they suffer disproportionately from food insecurity, as they are twice as likely to go hungry as non-homeless children, and, being homeless has also been demonstrated to be harmful to children’s emotional well-being. Homelessness also causes traumatic disruptions in the lives of children and increases children’s vulnerability to mental illness.

In practice, ACS files neglect petitions against families living in unsuitable housing. Rather than assist families in securing safer living conditions or addressing housing concerns directly, ACS workers frequently suggest that families leave homes deemed to be in poor condition (including NYCHA apartments) to go into the shelter system. While this suggestion meets many of ACS’ short-term goals for ensuring a safe environment for children, it creates an added burden on the already-overburdened NYC shelter system, and there are long-term negative consequences for family stability: the shelter system no longer provides permanent housing options to families; living in many of the family shelters in New York is harmful to children and families; and such a move often disrupts children’s education, as children still are often forced to change schools or travel long distances to get to school.  Rather than address the problem of family homelessness, the system offers a family further displacement in a city shelter or foster care.  Lack of adequate housing also makes it difficult for clients to comply with mandated services, causing children to be placed in foster care and/or delaying family reunification when children are already in foster care.

(a) ACS should advocate with DHS regarding shelter eligibility issues
BDS wrote extensively on this issue for the March 17, 2015 hearing. Please see specific policy recommendations and client stories on areas for improved coordination between ACS and DHS in our testimony available here: http://bds.org/testimony-before-new-york-city-council-on-acs-dhs-preliminary-fy2016-budget/.

(b) Housing Subsidies
ACS offers a housing subsidy for certain families, but it is currently available only in a very few cases, and is woefully inadequate to meet the realistic needs of the families we all serve.  The state-funded housing subsidy of $300 per month for families with active foster care or preventive cases is not enough to enable families to actually find affordable apartments in New York City.  City Council recently recognized the need for increased housing subsidies in passing Resolution 1073-2016, a resolution calling upon the New York State Legislature to pass, and the Governor to sign legislation that would increase the amount of housing subsidy from $300 to $600 per month, and extend the age eligibility from 21 to 24 for youth who have aged out of foster care.

In our experience, preventive services workers and even ACS workers are generally unaware that the subsidy exists, and those who are aware of it explain that it is not a useful tool for keeping children out of foster care.  Even workers who are aware of the existence of the housing subsidy are often unaware that it can be used to provide families with lump sum payments for rental arrears, repairs, and other one-time expenses to help a family obtain or preserve stable housing.  As a result, preventive workers often advise families to enter the shelter system — an intervention that is far more costly and harmful to family stability — instead of assisting them in preserving stable permanent housing. Ultimately, the state could save money by helping people pay rent, rather than paying $3,000 per month for a child in foster care and even higher sums for family stays in emergency shelters, yet they continue to pursue a punitive approach to poverty.

Recommendations: ACS should join forces with the City Council in lobbying the State for an increase in this subsidy to meet families’ needs or should supplement it with City funding. In the interim, ACS should better train its employees about the benefits of the subsidy.

(4) Identify High-Quality Services For Parents And Caregivers With Developmental Disabilities And Mental Illness
Another critical area that the City should be looking at is providing and improving services to parents and caregivers with Intellectual or Developmental Disabilities and mental health issues.  We are concerned about the number of clients we see where the only allegation against them in an Article 10 case is their cognitive delays or mental illness; these cases represent a failure of the system. The National Council on Disability reports that removal rates where parents have a psychiatric disability have been found to be as high as 70 percent to 80 percent; and where the parent has an intellectual disability, 40 percent to 80 percent nationwide.[25] Many parents struggling with these issues end up in the child welfare system because there are little to no resources available to assess and appropriately evaluate parenting capacity, and no resources to support parents to keep their children in the home.

ACS should not be filing neglect cases against these families but should instead be working with the appropriate City and State agencies to ensure that they get the ongoing support and services that they need. Very often the families have received inadequate and insufficient evaluations. Although these families can function independently with ongoing supportive services, the services that child protection currently offers these families, such as short-term preventive services, are inadequate and inappropriate to meet these families’ needs. In a letter dated January 29, 2015, the U.S. Department of Justice (DOJ) found that the Massachusetts Department of Children and Families (DCF) had violated the Americans with Disabilities Act and Section 504 of the Rehabilitation Act of 193 by denying a mother with developmental disabilities opportunities to benefit from support and services to achieve reunification.   Among other issues, the DOJ found that DCF failed to provide appropriate policies and training for social workers to understand their obligation to ensure the civil rights of parents with disabilities.[26]  New York City’s child welfare system faces many of the same deficiencies.

Recommendation: Where a parent presents to ACS with a possible intellectual disability or mental illness, ACS should assess whether the parent is receiving or eligible to receive any supportive services related to the perceived disability, coordinate the referral and evaluation process for the parent to receive appropriate services, and provide transitional services to the parent until those disability-related services are put in place. The process of applying for state assistance through OPWDD can be difficult to navigate, and ACS should be familiar with this application process and assist parents with establishing their eligibility.  ACS staff should be trained in reasonable accommodations that people with intellectual disabilities may need, such as more time allotted for case conferences and casework contacts, more specific assistance with traveling to appointments and time management, and specific services and classes that are tailored to the needs parents in this population.  ACS staff should also be trained in how to approach and talk to parents with a perceived disability, so as not to alienate parents.  In one of our cases where our client has a developmental delay, the case worker approached her in a very threatening manner, telling her that she was going to take her child.  This caused our client to be fearful and flee, resulting in worse outcomes for the family.   Had the worker approached her with sensitivity and offering assistance, the outcome likely would have been different.

(5) The City Should Provide Funding For Parents And Caregivers To Have Legal Representation At Child Safety Conferences
As court-based advocates, we often meet our clients after they have already been in contact with city agencies for months, or even years.  They have often already been interviewed by case workers and detectives, evaluated by mental health professionals, and given numerous directions to show up at conferences, meetings, or other events, with little understanding of the context or consequences.  In our experience, once these families enter the court system and parents are assigned attorneys, we are often able to smooth out misunderstandings, provide our clients with advice on how to better navigate systems, and connect them to services tailored to their needs.  By the time a family is coming to Court, however, it is often too late to avert the placement of a child into foster care or the separation of families.  If parents were provided with independent advice and counsel earlier in the process, it could help to avert some of these family separations, and likely would avert many filings, thereby saving court time and resources and ensuring that cases that needed to come before judges moved more quickly and received more attention.

Child Safety Conferences (CSC’s) are an important mechanism used by ACS during a child welfare investigation to determine child safety when ACS is considering filing a petition in court.  At the conference, which is supposed to include the family, a safety plan is developed, including recommendations for services, and a determination is made as to whether a case will be filed in court and whether foster care placement will be recommended. In some cases children have already been removed or children are removed at the conference.  At the CSC, a parent or caregiver is often in the middle of a crisis, terrified that she will lose her children, and unaware of her rights and responsibilities during a child welfare investigation.  Too often a critical opportunity to engage a family and conduct an appropriate needs’ assessment is lost and the relationship between a parent and the agency breaks down.

CSCs would be more successful and traumatic removals of children would be avoided, if parents were advised of their rights and responsibilities by a parent advocate or social worker who is associated with an attorney at this early stage.  Presently, no legal organization is contracted to provide parents with representation at CSCs and before a case is filed in court.  Parents are assigned a lawyer only once an abuse or neglect case is filed in Family Court.  Parents receive legal counsel only after the CSC and often after their children have been placed in foster care.  Once an attorney is assigned, an appropriate safety plan can be developed allowing the children to remain safely at home.  Institutional providers also have success averting removals at CSC’s where children are under Court-Ordered Supervision.  We believe the success we have achieved can be replicated with pre-petition advocacy.

Although not funded by the City, family defense providers have been able to provide some families with a small amount of pre-petition advocacy with good results for families.  The Center for Family Representation (CFR) achieved positive outcomes for families when it provided representation to parents and caregivers in CSCs (then called PDMs) through Project Engage and their work is discussed in their testimony submitted today.  In addition, through its Healthy Mothers, Healthy Babies program funded by a small grant, as well as its hotline and community intake services, BXD has provided pre-petition advocacy to parents and caregivers during a child welfare investigation and at a CSC.  The results show the promise of this approach. In FY 2015, BXD provided targeted social worker support and advocacy to 197 pregnant mothers who had older children in foster care.  Fifty of those women gave birth to babies who were at great risk of joining their siblings in foster care.  Once they were born, a CSC was convened and an advocate from BXD attended.  BXD collaborated with the foster care agency overseeing the older children and ensured that all of the women enrolled in HMHB were referred to prenatal care and evidence-based services including mother-child dyadic therapy, and substance abuse or mental health services if necessary.  BXD also provided assistance with housing and public assistance to further stabilize the lives of the expectant mothers.  Of the 50 births to the women engaged with HMHB, 66% were never removed from their mother’s care, 20% were removed but placed with their father or another relative identified by HMHB, and only 7% were placed in non-kinship care.   These results demonstrate that pre-petition advocacy saves families from the trauma of separation and reduces legal costs and foster care placements.

In 2015, The Bronx Defenders social work staff provided pre-filing advocacy to 183 clients.  BXD’s advocacy helped preserve families and avoid the trauma of unnecessary family disruption for hundreds of children. Because of the information provided by advocates during child welfare investigations in 183 cases, 142 of these cases resulted in connecting families with preventive service providers, such as drug treatment, mental health services, homemakers, visiting nurses or daycare facilities, to help parents address the needs that exist.  Moreover, children in 157 families were not placed in foster care.

Recommendation: The City should consider funding pre-petition advocacy in all five boroughs based on the results and lessons learned from small pilot projects conducted by CFR and BXD and the participation at CSC’s of all the parent representation providers.

(6) Assess And Address The Continuing Problem Of Racial Disproportionality In New York City’s Child Welfare System
New York City’s child welfare system is almost exclusively a system for families of color, as discussed previously. In the past nine years that our organizations have been representing parents in Article 10 cases, racial disparities have remained static. As in the criminal justice system, racially biased enforcement of the Family Court Act breeds distrust for child protective services agencies in poor neighborhoods of color. A woman named Jameelah with a child welfare case in New Jersey explains,  “You’ll see a Caucasian person in a supermarket and let’s say their children don’t have on a hat or shoes and its cold outside. Let that happen to an African American. Before you know it they’re reading your license plate and, boom, you have a social worker knocking at your door.”[27] Our clients in Brooklyn and the Bronx express similar sentiments to our attorneys and social workers regularly. Troubling racial disparities should cause ACS to remove children from their homes with more caution, not less.

Recommendation: If ACS is truly committed to diminishing and eventually eliminating racial disparities, removals should only be on the table in the most extreme cases. Otherwise, the communities that we serve will continue to view ACS as racially biased.

(7) Do Not Implement Predictive Analytics In New York City’s Child Welfare System.
Over the last year, governments and child welfare agencies across the country have begun to consider the utility of predictive analytics in the child welfare context. We strongly urge ACS and the Council not to pursue this avenue. As we have seen in the criminal justice context, risk assessment instruments are plagued by biases that reflect the prejudices or beliefs of whoever created or scored the instrument. ProPublica looked at one of the most widely used risk-assessment programs and how it fared in Broward County, Fla.[28] Researchers found that the risk assessment instrument was only accurate about 61 percent of the time, and that it treated blacks and whites differently. Black defendants were twice as likely to be rated as “high risk” incorrectly, meaning they did not go on to reoffend.  Meanwhile white defendants were twice as likely to be incorrectly rated as low risk and yet go on to reoffend.

Similar biases would be built into any child welfare analytics and exacerbate the severe racial disparities that exist already. We oppose any use of predictive analytics which substitutes stereotypes, bias and presumptions for the type of comprehensive case-by-case, fact specific assessments that families need and deserve, including an assessment of family strengths and progress in their lives.

Recommendation: Given the previously-discussed stark disproportionality we already see in the system, we implore ACS not to employ this untested tool and unwittingly embed racial disparity deeper into this system’s functioning.

(8) Stop the Criminalization of Poverty
Every day, our criminal defense practices serve low-income New Yorkers who are arrested, prosecuted and incarcerated because of their economic condition, with clear adverse impacts on the ability of affected individuals to care for their children. Arrests and prosecutions for poverty-based offenses such as fare evasion separate parents from their children every day. To our knowledge, the City does not track the number. However, we do know from the Osborne Association that 105,000 children in New York State have a parent incarcerated in prison or jail, and that this separation can have devastating consequences on the children. In this way, our City’s and State’s criminal justice policies and priorities are in direct contravention of the City’s other efforts toward preserving strong, healthy families.

Our clients spend countless hours in court, and, in many cases, far longer stretches in jail or prison. They suffer diminished work, education, and housing opportunities due to publicly-accessible criminal records. Many experience severe trauma, especially those who are incarcerated in New York’s notoriously abusive prisons and jails, which only compounds the intergenerational cycles of trauma that are at the root of the most serious child welfare proceedings.

Recommendation: The City should track the number of parents in NYC Department of Correction facilities and work with criminal court system stakeholders like BDS and BXD to ensure that pre-trial detention and incarceration sentences are rarely used in cases involving parents or caregivers.

(9) Make ACS More Accountable To The Communities It Serves
Another important way to improve the child welfare system is to make ACS more accountable to the communities it serves. Stakeholders, including parents and parent attorneys, should be directly involved whenever ACS develops and implements large scale policy changes or practice mandates, such as those that are being considered today.   Polices and changes should be made and implemented after thoughtful consideration and in collaboration with stakeholders.

Lastly, we address the recent DOI report and respond to the assessments and recommendations laid out there.

The May 2016 DOI Report
In May 2016, the NYC Department of Investigation issued a report and recommendations based on a review of three cases with ACS involvement where there was either a fatality or near fatality.  The evaluation of the individual cases appears to be based on a review of records in the three cases and interviews with professionals involved. We question the validity of system-wide recommendations based on only three cases out of thousands and without talking to all of the parties involved including, in one case, BDS who represented one of the parents.  In that case, which involved a child who died “under suspicious circumstances, ” the report fails to mention that the child was living in a City shelter and the conditions of the shelter are likely to be blamed for the child’s death.  We question why this case involving an accidental death of a child is even included in the DOI report. The report is also filled with subjective interpretations of facts which should not be the basis for systemic changes.

The report criticizes ACS for the lack of documentation and timing of supervisory reviews. While intensive supervision of CPS workers is absolutely crucial to the quality of casework practice, the focus of any evaluation should be on the substance and quality of decision-making, not on adherence to documentation and time frame rules.

We are also concerned about the recommendations suggesting taking appropriate disciplinary actions against staff. While disciplinary action for violating rules, such as falsification of records, may be warranted in some cases, we are concerned about this reaction to tragedies (such as in the recent case of Zymere Perkins) because it scapegoats individual caseworkers for systemic problems, and encourages the overreliance on filing cases and removing children because workers and supervisors are afraid. As noted above, removals into foster care and out of the home harm children and families and should never be the go-to response to tragedy.

The report also finds that ACS failed to adequately oversee its foster care agency providers. While we understand ACS’s monitoring role of foster care agencies and how important it is for ACS to ensure that agencies are complying with ACS policies and regulations and with the law, such as providing reasonable efforts for reunification and ensuring timely reunification, it is important to recognize that the case planners at the foster care agencies are the workers who are the most familiar with what is happening with a family on a day-to-day basis.  As such, case planners are often in the best position to make decisions about the family.  Increased monitoring of agencies should not result in more barriers to family reunification when that is in the children’s best interests.  We agree with ACS that DOI should not be the body that ACS reports to regarding improved oversight and appreciate the opportunity ACS has given the public recently to comment on its proposed Integrated Family Team Conference Policy. We hope that community stakeholders will be involved in ongoing implementation and review of the policy as our clients experience the impact of these policies on a day-to-day basis.

In addition, the report raises the issue of whether foster care agencies are timely filing petitions to terminate parental rights and argues that there are many children in foster care where petitions should have been filed where exceptions to filing are not documented.  Based on our experience in the field, we are confident that these cases generally do meet the required exceptions, including that the children are in kinship placements.  However, it is possible that these exceptions are just not clearly documented at service plan reviews and we agree that they should be documented.  Finally, the report recommends collecting and sharing additional data points with DOI.  We would request that stakeholders be involved in determining the data points and that the information be shared widely.

Conclusion
Our proposals would not only strengthen the system in these key areas, ensuring that children are able to remain with their families in safe, secure and stable environments, but would also help enable the child welfare system to leverage available resources in the most cost-effective and impactful ways possible. We believe that following these suggestions will result in more stable families with access to the resources they need.

Once again, we are grateful to the Council for your attention to this important issue. Please do not hesitate to reach out to Lauren Shapiro at lshapiro@bds.org or (917) 204-2568 or Emma Ketteringham at emmak@bronxdefenders.org or (718) 508-3468 with any questions.

[1] New York City, Keeping Track Online: The Status of New York City Children (2013), available at http://data.cccnewyork.org/profile/location/1/city#1/new-york-city/1/1193,1194/a/a.

[2] Martin Guggenheim, Representing Parents In Child Welfare Cases: Advice and Guidance for Family Defenders, ed. Martin Guggenheim & Vivek S. Sankaran, 17 (2016).

[3] John Eckenrode et al, Income Inequality and Child Maltreatment in the United States, 133 Pediatrics 454 (2014), available at http://pediatrics.aappublications.org/content/133/3/454.

[4] H. Roger Segelken, Child abuse and neglect rise with income inequality, Cornell Chronicle, Feb. 11, 2014 available at http://www.news.cornell.edu/stories/2014/02/child-abuse-and-neglect-rise-income-inequality.

[5] Dorothy Roberts, Shattered Bonds: The Color of Child Welfare , 27(2003) (noting that “[p]overty—not the type or severity of maltreatment—is the single most important predictor of placement in foster care and the amount of time spent there.);  Leroy H. Pelton, The Continuing Role of Material Factors in Child Maltreatment and Placement, 41 Child Abuse & Neglect 30 (2014) (noting that “[c]hildren in foster care have been and continue to be placed there from predominantly impoverished families.”); Mark E. Courtney, The Costs of Child Protection in the Context of Welfare Reform, 8 The Future of Children 88, 95 (1998).

[6] Dorothy Roberts, Child Welfare and Civil Rights, 2013 U. Ill. L. Rev. 171, 172-73 (2003) (quoting Admin. for Children & Families, U.S, Dept. of Health and Human Servs., Child Maltreatment 1992: Reports from the States to the National Child Abuse and Neglect Data System, Executive Summary, Finding 4, at 3 (2000)).

[7] Tina Lee, Catching a Case: Inequality and Fear in New York City’s Child Welfare System, 5-6 (New Jersey: Rutgers University Press, 2016).

[8] See Roxana Saberi & Lisa Semel, In NY, black families more likely to be split by the foster care system, Al-Jazeera America, June 25, 2015, available at http://america.aljazeera.com/articles/2015/6/25/new-york-foster-care-system-racial-disparity.html (citing ACS data).

[9] Reva I. Allen, Alex Westerfelt, Irving Piliavin, & Thomas Porky McDonald, Assessing the Long Term Effects of Foster Care: A Research Synthesis (Child Welfare League of America, 1997), cited in Allon Yaroni, Ryan Shanahan, Randi Rosenblum, & Timothy Ross, Innovations in NC Health and Human Services Policy: Child Welfare Policy, VERA Institute of Justice Policy Briefs, Jan. 2014, available at http://www.nyc.gov/html/ceo/downloads/pdf/policybriefs/child-welfare-brief.pdf.

[10] Rethinking Foster Care: Molly McGrath Tierney at TEDxBaltimore 2014, available at http://tedxtalks.ted.com/video/Rethinking-Foster-Care-Molly-Mc.

[11] Children in foster care in Florida, Massachusetts, Michigan, Oregon, and Texas were prescribed psychotropic medications 2.7 to 4.5 times more often than children who were not in foster care. U.S. Gov’t Accountability Off.,GAO-12-8201, Foster Children HHS Guidance Could Help States Improve Oversight of Psychotropic Prescriptions 8 (2011).

[12] Richard Wexler, Take the Child and Run: Tales From the Age of ASFA, 36 New England L. Rev 129, 137 (2002).

[13] Compl. at 59-60, Eliza W. v. City of N.Y., No. 1:15-CV-05273-LTS-HBP, available at http://pubadvocate.nyc.gov/sites/advocate.nyc.gov/files/amended_complaint_12.28.2015.pdf (“Based on the most recent federal data available, New York State ranks 46th out of 48 states and territories for instances of substantiated or indicated maltreatment of children while in foster care. Put simply, children in New York are more likely to be harmed while under the state’s protection than children in virtually every other state.”)

[14] Joseph J. Doyle, Child Protection and Child Outcomes: Measuring the Effects of Foster Care, 97 Am. Econ. Rev. 1583, 1584 (2007) [hereinafter “Doyle 2007”].

[15] See Patrick J. Fowler et al., Pathways to and From Homelessness and Associated Psychosocial Outcomes Among Adolescents Leaving the Foster Care System, 99 Am. J. of Pub. Health 1453 (2009).

[16] See Doyle 2008, supra note 14.

[17] Id. at 766-67.

[18] David Rubin et al., The Impact of Kinship Care on Behavioral Well-being for Children in Out-of-Home Care, 162 Archives of Pediatrics and Adolescent Med. 550, 552-53 (2008).

[19] Marc Winokur et al., Kinship care for the safety, permanency, and well-being of children removed from the home for maltreatment, Campbell Systematic Reviews 4 (2009).

[20] Winokur, supra note 19.

[21] Flash: October 2016, NYC Admin. for Children’s Servs., available at http://www1.nyc.gov/assets/acs/pdf/data-analysis/2016/Flashindicators.pdf .

[22] See Testimony from the National Association of Social Workers, Washington Chapter before the Committee on Human Services and Corrections (2013), available at http://nasw-wa.org/wp-content/uploads/2013/06/Testimony-SB-5163-CPS-Workers-2013.pdf.

[23] Testimony from the National Association of Social Workers, Washington Chapter, supra note 24 (citing Surjit Singh Dhooper, David D. Royse, & L.C. Wolfe Does Social Work Make A Difference?, 35 Social Work 57-61 (1990); Booz, Allen, & Hamilton, The Maryland social work services job analysis and personnel qualifications study. Report prepared for the Department of Human Resources, State of Maryland,(1987); U.S. General Accounting Office, Child Welfare: HHS could play a greater role in helping child welfare agencies recruit and retain staff (2003)).

[24] Data has shown that median household income has not kept up with median rent in New York City. This is particularly true in some of the City’s struggling neighborhoods. For example, in University Heights in the Bronx, median monthly rent increased 14.3% from 2005 to 2014, while median income decreased 12%. See, e.g., New York City Rent Guidelines Board, 2016 Income and Affordability Study, April 17, 2016, available at http://www.nycrgb.org/downloads/research/pdf_reports/ia16.pdf.

[25] National Council on Disability, Rocking the Cradle: Ensuring the Rights of Parents with Disabilities and Their Children (2012), available at http://www.ncd.gov/sites/default/files/Documents/NCD_Parenting_508_0.pdf.

[26] Joint Letter from U.S. Dep’t of Justice: Civil Rights Division and the U.S. Dep’t of Health and Human Services: Office for Civil Rights, Investigation of the Massachusetts Department of Children and Families by the United States Departments of Justice and Health and Human Services Pursuant to the Americans with Disabilities Act and the Rehabilitation Act (DJ No. 204-36-216 and HHS No. 14-182176), Jan. 29, 2015, available at https://www.ada.gov/ma_docf_lof.pdf.

[27] Sarah Gonzalez, Black Mothers Judged Unfit at Higher Rate than White Mothers in NJ, WNYC, May 26, 2015, available at http://www.wnyc.org/story/black-parents-nj-lose-custody-their-kids-more-anyone-else/.

[28] Julia Angwin, Jeff Larson, Surya Mattu and Lauren Kirchner, Machine Bias: There’s software used across the country to predict future criminals. And it’s biased against blacks, ProPublica, May 23, 2016, available at https://www.propublica.org/article/machine-bias-risk-assessments-in-criminal-sentencing.

BDS CRIMINAL DEFENSE PRACTICE SUPERVISING ATTORNEY YUNG-MI LEE TESTIFIES BEFORE THE NEW YORK CITY COUNCIL ON EVALUATING THE PROGRESSION OF JUSTICE REBOOT

TESTIMONY OF:

Yung-Mi Lee – Supervising Attorney, Criminal Defense Practice

BROOKLYN DEFENDER SERVICES

Presented before

The New York City Council

Committee on Courts and Legal Services

Oversight Hearing: Evaluating the Progression of Justice Reboot

October 26, 2015

My name is Yung-Mi Lee. I am a Supervising Attorney in the Criminal Defense Practice at Brooklyn Defender Services (BDS). I have practiced as a criminal defense attorney in New York and New Jersey for over 22 years. I currently represent misdemeanor and felony clients in Brooklyn criminal and Supreme Court.

BDS provides innovative, multi-disciplinary, and client-centered criminal, family, and immigration defense, as well as civil legal services, social work support and advocacy, for over 40,000 clients in Brooklyn every year. We thank the City Council Committee on Courts and Legal Services and the Committee on Public Safety for the opportunity to testify about Justice Reboot and case processing in Brooklyn.

Brooklyn Defender Services strongly supports the City’s efforts to reduce the number of people who await trial on Rikers Island. In 2015, 67,672 people were admitted to New York City jails, with an average daily population of 10,240.[1] During this period, approximately 13,100 people arraigned in Brooklyn courts spent time on Rikers Island, 89% of who were identified as “African-American” or “Hispanic.”[2] Roughly 75 percent of people on any given day at Rikers Island are there in pretrial detention – presumed innocent under the law and ostensibly waiting for their day in court. Yet the reality is that judges and prosecutors are just waiting for them to plead guilty.

Justice Reboot aims to reduce “unnecessary incarceration” by reducing court processing times.[3] While a laudable goal in concept, in a system where the favored outcome is a plea bargain, the singular focus on case-processing time results in pressure on the defendant to take a plea even if that plea is not fair or does not reflect his or her individual circumstances.  As the attorney for those clients, we agree that the courts should move cases expeditiously but we warn against the tyranny of harsh and inflexible time limits and pressures because they can work against individualized justice and fairness.

There are ways beyond simply expediting cases to significantly reduce the jail population in NYC.  For example, an honest look at the District Attorneys’ policies regarding bail requests could be start.  Since every stay at Rikers cost NYC thousands of dollars, the District Attorneys, as elected officials, should be held accountable for the manner in which they recommend the use of these expensive resources.  Another important example would be to promote the better transfer of information about the case to the defense earlier in the proceedings.  Although reform of the discovery laws would require legislative change, the City Council and Mayor’s Office of Criminal Justice have the ability to persuade prosecutors to adopt a policy of voluntary discovery that would immediately improve the case processing time of cases, dramatically improve the fairness of the proceedings and would save the City millions of dollars in reduced pending caseloads and pre-trial incarceration. .

Justice Reboot’s efforts to reduce the duration of felony cases has resulted in a drop in the number of pending jail cases that are two or more years old. Yet 2016 data from the Office of Court Administration shows that the number of pending felony cases is up since 2015.

The OCA data is consistent with the trends that BDS has seen over the past few years. BDS data and case tracking shows that the number of indicted felony cases has increased and so has the length of the life of those cases. Indeed, we have the exact same number of felony cases where clients are in jail for more than one year as of the end of September as we did in April, when Justice Reboot was announced. While the system is resolving older cases at a slightly faster rate than a year ago, we now have more felony cases and indictments and the cases last, on average, longer than they did a year ago, so there is no net gain. At BDS, we are not feeling the impact of Justice Reboot on our case load.

It is clear that the project’s emphasis on prioritizing the oldest cases has not worked to reduce Rikers populations in any meaningful way. We recommend, instead, that the project instead on understanding the causes of delay and incentivizing the courts and prosecutors to reduce unnecessary incarceration, in line with the Council’s and MOCJ’s objectives.

(1) Qualitative Review of Cases
The City should evaluate the cases that are approximately six months old rather than only the oldest cases.  These cases are the ones where early plea bargaining has not been successful.  Some of these cases are intended for trial and those cases should be expedited.  Cases where there are impediments to resolving the case by plea bargain should be analyzed as to the reason.  It is better to determine the best path of the case early on, including alternatives to incarceration, and have the time for the parties to agree and pursue these options.  At this point there should be an emphasis on reducing or eliminating bail for our clients who are still incarcerated after so long, particularly on cases where a non-jail disposition is possible.

(2) To truly decrease case processing times, DA’s should turn over the police reports early in the case.
The greatest injustice in New York’s criminal justice system is that our criminal procedure laws do not require early disclosure of the evidence on the case to the defense.  This lack of information is unfair and results in wrongful convictions.  It also has a pernicious effect on the process of plea bargaining.  Without any information on the case, it is hard for the defendant to trust the attorney when we recommend acceptance of a plea.  It is hard for the defense attorney to even assess the legitimacy of a plea offer without the police reports.  Without the information we need to negotiate the plea bargain we believe is fair and appropriate, we are unable to move the process forward.  Instead the case ends up in a standstill for months.  When the case finally comes to trial, our experience is that the plea offer often drops significantly.  In Brooklyn, many cases are subject to open file discovery due to the policy of the DA’s office.  Our data shows that the open file discovery alone reduces the average length of case by six months.  Due to the expense associated with delay, the City Council should request that the District Attorneys explain why they decline to adopt an open file discovery policy for all cases other than those in which they are concerned about the witness’ safety.

We spoke in depth about the need for discovery reform at the Committee on Courts and Legal Services hearing on September 23, 2016. Please see our testimony, available on www.bds.org, for more information along with recommendations on what the Council can do to support statewide discovery reform.

(3) Encourage prosecutors and judges to think holistically about the consequences of their bail recommendations and decisions
The Vera Institute of Justice completed a groundbreaking report detailing how New Orleans went about reducing the number of people the city incarcerates on any given day by more than two-thirds since Hurricane Katrina.

The researchers found that decreasing the number of jail beds from 5,832 to 1,438 was critical in reducing incarceration. “There’s absolutely no underestimating how important it is to constrain demand for jail beds by restricting supply,” one researcher said. By capping the number of available beds, the City Council sent a signal to everyone in the system—police, prosecutors, judges—that jail was a resource that was not to be overused.[4]

Similarly, in Rochester, the number of jail beds is limited.  Each day the court is advised about the number of available slots and the Judges are able to use the resource in way that makes the most sense.

The City Council could encourage the Office of Court Administration to generate information for Judges regarding their use of jail beds.  Prosecutors could also be required to keep data on their own bail requests so that the public would have access to that information.  This could also form the basis for DA self-evaluation regarding bail practices. Judges and prosecutors should have some accountability for the expense associated with setting bail.  In addition, the Council should recommend eliminating thousands of jail beds in NYC rather than increasing the supply, as has been requested by DOC.

Of note, the New Orleans City Council also changed the summons system, resulting in officers writing summonses for 70 percent of nonviolent offenders.

The New York City Council has already taken important steps in reforming summonses and how NYPD handles low-level cases. We look forward to seeing the fruits of those reforms when they go into effect next year. But the other lesson from the Vera report is clear: in order to lower the number of people the system incarcerates, we have to take away the incentives for incarceration and provide fewer opportunities for incarceration.

Conclusion
The City Council should consider whether the goal of the Justice Reboot initiative, to reduce case processing times, is sufficient to properly guarantee the most limited and appropriate use of pre-trial detention. Although clearly one important aspect of reducing the incarceration rate at Rikers, other measures that get to the heart of the bail decision and the pre-trial process must also be addressed.  A drastic increase in programs and policies to address mental illness, poverty, addiction, homelessness, and widespread discrimination would go a long way to doing the decreasing incarceration by stopping the cycle of incarceration and reducing the chance of re-arrest while improving the life circumstances of poor people of color in NYC .

We look forward to working with you to achieve these goals. If you have any questions, please do not hesitate to contact me at ylee@bds.org or 718-254-0700 ext. 104.

[1] Mayor’s Management Report, available at http://www1.nyc.gov/assets/doc/downloads/pdf/MMR_FY15_FINAL.pdf

[2] Rikers Island Population Demographics, FY16 Qtr 4, available at http://www1.nyc.gov/assets/doc/downloads/pdf/FY16_4TH_QUARTER_INTRO_766_ADP_ADMITS.PDF.

[3] Press Release: Mayor de Blasio and Chief Judge Lippman Announce Justice Reboot, an Initiative to Modernize the Criminal Justice System, Office of the Mayor, April 14, 2015, available at http://www1.nyc.gov/office-of-the-mayor/news/235-15/mayor-de-blasio-chief-judge-lippman-justice-reboot-initiative-modernize-the.

[4] Calvin Johnson, Mathilde Laisne, & Jon Wool, Criminal Justice: Changing Course on Incarceration, Data Center Research (June 2015), available at https://s3.amazonaws.com/gnocdc/reports/The+Data+Center_NOI10_Changing+Course+on+Incarceration.pdf.

BDS COMMUNITY ADVOCACY COORDINATOR NICK MALINOWSKI TESTIFIES BEFORE THE NEW YORK CITY COUNCIL ON POLICE ACCOUNTABILITY AND THE CIVILIAN COMPLAINT REVIEW BOARD

TESTIMONY OF:

Nick Malinowski

BROOKLYN DEFENDER SERVICES

Presented before

The New York City Council

Committee on Public Safety

Oversight Hearing on

Examining the New York City Civilian Complaint Review Board

October 21, 2016

My name is Nick Malinowski, I am here on behalf of Brooklyn Defender Services, which provides high-quality multi-disciplinary criminal, family and immigration defense, civil legal services such as housing, benefits, education and social work support to more than 40,000 indigent Brooklyn residents every year. Each of our clients, by definition, has had an interaction with the New York City Police Department and its officers, giving us a front row seat from which we can consider mechanisms of police accountability in New York City. We thank the City Council Committee on Public Safety, and Chair Vanessa Gibson, for holding this important oversight hearing on the Civilian Complaint Review Board, and for inviting us to attend.

Background: The Importance of Police Accountability and Legitimacy
Never before in the history of our organization has police accountability been so prominently an issue of popular national importance. Just four years ago drag-net Stop & Frisk was being defended as an essential policing tactic, responsible for saving tens of thousands of lives despite research that questioned this causality and obvious constitutional concerns. While we welcome the national, progressive attention on these issues, to which our clients are often at the receiving end, we must acknowledge how we got here: long-standing police abuses coming into the light due to lawsuits, civilian documentation and protest. The deaths of Eric Garner and Ramarley Graham at the hands of the New York Police Department, and the public’s perception of a lack of accountability for the officers involved, especially as compared to the extensive punishment regimes for civilians in criminal court, have driven a significant interest in this topic both locally, nationally, and even internationally.

There is a growing interest in the role of civilian oversight to address the crisis of police accountability. While the administration has stressed opportunities for the NYPD to, as they say, “reform itself from within,” history has not proven this to be the most expedient path to progress. Rather, anti-corruption commissions from the 1970s (Knapp Commission) and the early 1990s (Mollen Commission), followed by law suits including Floyd v. City of New York, Ligon v. City of New York, Raza v. City of New York have generated the biggest wins for civil rights and policing reform. The CCRB is generally considered a national model for civilian bodies, yet the question as to whether it actually deters police misconduct remains an open one; in fact, the CCRB suggested in its 2015 annual report that it would be studying this very question. We anxiously await the results.

While much of the national focus is on deaths in police custody, or at the hands of law enforcement, it is through non-fatal daily punitive interactions, nearly 1 million each year, that most people experience the police in New York City. One of the major changes in the courtroom resulting from the massive influx of arrests accompanying the shift towards broken windows policing is the reality that most cases rely on the testimony of a single police officer alone, rather than a civilian-generated complaint. Deference to prosecutorial power and discretion and sentencing guidelines that mandate long prison sentences have made trials nearly extinct, and thus the integrity of the police officer has become paramount to our system of criminal justice in New York City.

The importance of, and challenges of, accountability become even more apparent as we learn more about the importance of perceptions of legitimacy and how trust in the police drives down violence of all kinds. A recent study in Milwaukee showed that some people, particularly in areas of high police involvement, stopped calling 911 to report crimes after high-profile examples of police misconduct[1]. We need to cease considering police misconduct as a case of “bad apples” and look towards systemic reforms and accountability measures. The racial gap in perceptions of policing is widening, along with other forms of polarization in our country. Nationally, confidence in the police is at an all-time low[2].

Current Holes in Accountability
The city needs to do more to protect the public from problem officers. New York City is home to one of the most secretive regimes in the country when it comes to police transparency. It is all but impossible for the public, or defense attorneys, to see police disciplinary records or any administrative actions resulting from alleged or substantiated misconduct. Compare these privacy protections to those experienced by our clients in criminal court, who are accused sometimes of serious offenses but much more frequently of minor behaviors less damaging to a sense of public order than police misconduct. Is it more important for the public to know which of their neighbors has stolen hygiene products from a chain pharmacy, or which officers in their communities carry substantiated claims of false arrest, brutality or other abuses of authority? Unfounded and unsubstantiated claims of gang involvement are used against our clients routinely, yet we are unable to include substantiated claims of misconduct against their accusers. Recently the Office of Court Administration sought corrections for 36,000 records where criminal histories meant to be sealed were left open; the state sells these records to third-party vendors who sell the information, even when it’s inaccurate, to landlords, bankers, anyone who asks. Sealed information from RAP sheets is also regularly leaked to news outlets by law enforcement personnel, in violation of state law. When the names and photographs of our young clients are distributed to the media, our City has already done them grievous lifetime harm that cannot be undone by findings of innocence, youthful offender adjudications, or subsequent rehabilitation. As a general rule privacy has been greatly degraded in all areas except for police misconduct and discipline. Why?

Because the City has no apparatus for publicly collecting and disseminating these data and records, community groups are left tracking police officers in their precincts in order to try to produce some semblance of accountability. While the public, especially with cell-phone video, have done tremendous public good as a result, the city should be concerned that what is really a government obligation has been filled by community members as a public safety necessity. What is left is a well-founded public perception that the City will only act on police reforms when it is forced to do so. The CCRB should be tasked with providing the public with greater access to the performance and disciplinary backgrounds of officers in local precincts. We cannot hide behind state laws that seem to frustrate this task.

To the agency’s credit, the CCRB has attempted to gain access to some police records, but has been blocked by the City Law Department, which the City Charter provides with final say over areas of litigation pursued by the CCRB. This is an obvious conflict of interest and disrupts any claims of the CCRB being an independent agency. The Council should look into ways to make the CCRB independent of the Law Department, which, of course, defends the City in Civil Law suits stemming from police misconduct. As a civilian oversight body, the CCRB should be accountable to the people of New York, and specifically to those people who have been victimized by police misconduct.

In keeping with this premise, the Council could consider changing the City Charter to allow the CCRB to have final disciplinary say over police officers, rather than deferring this responsibility to the police commissioner. The CCRB has itself acknowledged that it does not know if the penalties resulting from substantiated misconduct claims have any deterrent effect. Troublingly, for the most problematic officers, complaints stacked up after five or more years of service time, perhaps indicating that as they were disciplined they grew more comfortable with misconduct than before.

Brooklyn-Specific Concerns
Brooklyn was the borough with the most CCRB complaints in 2015. Specifically, the 75th and 73rd precincts were among the top two precincts in the City for CCRB complaints, with Brooklyn North Headquarters continuing to be another problematic command. The 75th precinct is also the precinct that generates the highest number of civil lawsuits against the City related to police misconduct, and with the most civil forfeiture claims as well. With the benefit of the CCRB’s recent move toward more precise record keeping, we have also learned, unfortunately, that based on the number of complaints, Brooklyn is home to five of the six worst precincts for LGBTQ New Yorkers. While the Brooklyn District Attorney has won accolades for his conviction integrity unit, this successes expose a history of police and prosecutorial misconduct in the borough that extends back decades.

We ask City Council today, what is being done to reverse these trends, many of which have gone wholly unchecked for years? The CCRB should have the power to recommend officers be transferred to a different precinct following substantiated misconduct. Advocates for police accountability, which include our clients and constituents, rightly seek the dismissal of problematic officers; however, historically this has been all but impossible to achieve. In one of our precincts, civilian video-tape has led to the substantiation of misconduct by several officers who nevertheless remain in the community. It is truly a slap in the face to people victimized by City employees of the Police Department when they are forced into repeated interactions with the same officers. At the very least, the City could explore getting problematic officers off the street, especially in the precincts and communities where they have victimized people.

The Glaring Absence of CCRB in the Courtroom
In its 2015 annual report, the CCRB acknowledged doing no outreach in criminal courts around the City. Roughly 600,000 people a year are summonsed or arrested by the NYPD; all of these people by definition have had contact with a police officer and thus an interaction that has the potential to include police misconduct. Just as the City uses targeted outreach to promote the services of 311 to tenants whose landlords might be illegally denying them heat in winter, we ask the City Council to push CCRB to make outreach in the courts a priority.

Last year a BDS client won his criminal case after a judge found that officers from the 67th precinct in Flatbush were not trustworthy. This was a case where a gun was planted on one of our clients. But what has the city done to curb the authority of these officers who nevertheless may be making arrests even today? How would the public even know? The Brooklyn District Attorney’s Office said he would launch an investigation into the precinct, but more than a year later we have heard nothing. Similarly, the CCRB has found 60 police officers guilty of making false statements during CCRB hearings, though the agency has not published any disciplinary reports relating to these officers. If these officers made false statements to the CCRB, it warrants an investigation into whether they made false statements to courts as well. Does the CCRB have authority to consider cases dismissed or otherwise adjudicated in court with evidence of officer misconduct? If not the CCRB, who should be looking at these types of issues?

More recently a client was falsely arrested; his case was finally dismissed once surveillance video of the arrest was recovered. We knew initially that the officer involved in the arrest had been involved in misconduct due to newspaper articles, alone, but did not have enough facts about the resolution of the initial case to make a persuasive argument to a judge about the instant matter. Eventually our client was vindicated in his claims to innocence by video, but the City should have an interest in preventing cases like this from ever occurring in the first place, and resolving them immediately rather than having to wait for surveillance video. At least this client wasn’t waiting in jail, but of course that happens as well.

Historically our office has been hesitant to work with the CCRB because of the potential negative impact on open criminal matters. Currently we are working with the CCRB to implement a new process for encouraging clients to make complaints of misconduct first to us, and then to the CCRB, so that we can protect their rights as they pertain to the criminal case. The CCRB’s interest in case processing times can conflict with appropriate concern for the rights of people facing criminal charges. Our clients have been told by CCRB that their cases will be closed as “non-compliant” after we advised them to delay testifying due to complicated criminal court matters. People should not be forced into such a choice. To the extent that attorneys serve as reporting non-witnesses to a CCRB complaint, the CCRB should update its rules to provide counsel with all information that is provided to the police and other parties to traditional cases. We hope that by working with CCRB we can develop a process for people with pending criminal cases that works for everyone, and will help the CCRB to collect complaints from our clients.

In speaking with our clients about these issues, the reactions have been decidedly mixed. While some have expressed interest in filing complaints, others have declined, telling us that the CCRB process is unsatisfactory because nothing ever happens to the police officer. It’s hard to explain to someone that at most an officer who has been found to have engaged in serious misconduct could lose a couple vacation days. There is not much incentive for our clients to spend a lot of time following up on these complaints if the outcomes will not be satisfactory. Meanwhile, the CCRB has emphasized mediation as a desired result to reach understanding between police officers and civilians. We agree that a great deal of good can come from this type of conflict resolution, but wonder why the City has prioritized this only in cases of civilians making complaints about police misconduct. We would like to see the City Council look into expanded the use of mediation in the criminal court context as well.

General Concerns for Greater Policing Accountability
The CCRB’s 2015 annual report raises significant issues related to stops and searches and civilian filming of police activity that should prompt action by the City Council. Documented Stop and Frisks have dropped in New York City from 685,724 in 2011 to 22,563 in 2015; however the ratio of complaints to recorded stops has skyrocketed, while the racial make-up of people in reported stops exposes serious questions about racial equity. In 2011, there were 1,655 CCRB complaints related to Stop and Frisk, making the complaint to stop ratio 1:414. In 2015 there were 888 CCRB complaints related to Stop and Frisk, a decline, but one that puts the new complaint to stop ratio at 1:25. This shockingly steep increase combined with the findings of Peter Zimroth, the federal Stop and Frisk monitor, that officers are not always reporting stops is concerning. Similarly we do not always see UF-250s or other paperwork describing stops in arrest information provided to the court, all of which leads us to question whether the decline in stop and frisks has perhaps been overstated.

Similarly, in 2011 there were 58,363 documented searches, which drew 981 CCRB complaints for a ratio of 1:59. In 2015, there were just 4,204 documented searches, leading to 485 complaints, for a ratio of 1:9. Again these numbers lead us to question whether or not searches are occurring without being properly recorded. These issues point for a need for greater City Council oversight of the NYPD as a general matter. Intros 182 & 541, otherwise known as the Right to Know Act, would perhaps mitigate some of these concerns.

Conclusion
Thank you for your consideration of our comments. We look forward to continuing to work with the Council to create meaningful police accountability in our City. Please do not hesitate to reach out to me with any questions about these or other issues at (718) 254-0700 (ext. 269) or nmalinowski@bds.org.

[1] http://www.asanet.org/sites/default/files/attach/journals/oct16asrfeature.pdf

[2] http://www.gallup.com/poll/183704/confidence-police-lowest-years.aspx

BDS NYIFUP SUPERVISING ATTORNEY ANDREA SáENZ TESTIFIES BEFORE THE NEW YORK CITY COUNCIL ON MULTI-AGENCY SUPPORT FOR IMMIGRANT FAMILIES

TESTIMONY OF

Andrea Sáenz – Supervising Attorney

New York Immigrant Family Unity Project (NYIFUP) Team

BROOKLYN DEFENDER SERVICES

Presented before

The New York City Council

Committee on Immigration

Oversight Hearing on

Coordinating Multi-Agency Support for Immigrant Families

October 21, 2016

My name is Andrea Sáenz. I am the Supervising Attorney of the New York Immigrant Family Unity Project (NYIFUP) team at Brooklyn Defender Services (BDS). BDS provides innovative, multi-disciplinary, and client-centered criminal, family, and immigration defense, as well as civil legal services, social work support and advocacy, for over 40,000 clients in Brooklyn every year. I thank the City Council Committee on Immigration, and in particular Chair Menchaca, for the opportunity to testify today about the critical role that City agencies play in supporting immigrant New Yorkers and to make recommendations on how to coordinate multi-agency support.

New York City is the nation’s leader in supporting immigrant communities, in large part because of the advocacy and funding provided by the City Council. The New York Immigrant Family Unity Project (NYIFUP) is New York City’s groundbreaking, first-in-the nation program providing quality counsel to immigrant New Yorkers who are detained and facing deportation and separation from their families and communities. BDS is proud to be a NYIFUP provider, along with The Bronx Defenders and The Legal Aid Society. In its first three years, NYIFUP has shown remarkable success and served as a model for access to justice. The following numbers were provided to us from the Vera Institute of Justice based on a preliminary and ongoing analysis of NYIFUP from earlier this year.

Record of Success

  • Outcomes: NYIFUP has obtained relief, termination, or administrative closure for 154 clients, who may now remain in the United States. NYIFUP attorneys have won more than half of their trials.
  • Clients Released from Detention: Counting these 154 successful outcomes, NYIFUP has secured release from custody for 452 clients. Thus, 31% of NYIFUP’s clients have been released from detention thus far and have been reunited with their families.
  • Ancillary Proceedings: NYIFUP has initiated 153 ancillary proceedings— proceedings in other courts or with USCIS that are critical to obtaining successful outcomes or release from detention in the deportation proceedings.
  • Voluntary Departures: NYIFUP has negotiated 102 voluntary departures so that individuals could avoid the onus and legal consequences of a deportation orders.
  • Families across the City: NYIFUP has represented clients living in 49 out of 51 City Council districts.

National Model

  • Spurring Replication Across New York State: Inspired by New York City’s leadership, the New York State Assembly provided funding in FY 2015 for a small pilot program at the Batavia Immigration Court in upstate New York, which has shown great success reuniting detained immigrants with their families. In FY 2016, the State Assembly doubled this funding, expanding the reach of NYIFUP pilot programs upstate. In FY 2017, the State Legislature tripled that funding, and the upstate pilot programs are reaching a significant number of clients who would never have had counsel without the spark that we started here in the city.
  • Inspiring Efforts Across the Country: NYIFUP has been the subject of national press and inquiry from jurisdictions across the country. In 2015, a NYIFUP-inspired universal representation program opened its doors in New Jersey, and cities including San Francisco, Chicago, and Boston have convened formal “study groups” to issue reports on access to counsel and develop programs like NYIFUP in their jurisdictions. Currently, Los Angeles is seriously considering a city-funded pilot program to follow in New York’s footsteps.

Connecting Clients to City Services
NYIFUP saves lives and strengthens immigrant communities. Critical to our success are the social workers who round out our legal teams, providing emotional support and connecting our clients and their family members with necessary services. By recognizing that social workers are a necessary component to any defense team, the City ensures that NYIFUP clients and their families are in the best position to access all of the programs and services that City and non-profits provide to New Yorkers.

I am proud to say that each of the three NYIFUP provider organizations has one or two in-house social workers on their NYIFUP team, who help us plan services a client can access upon release from ICE detention, and help support clients and family members as they complete their cases and transition to more stable and productive lives in the city they call home. As a program that is administered by the Human Resources Administration, we are proud to be able to connect clients to HRA benefits and other agency services.

This summer, when the City Council increased funding for NYIFUP – for which we are extremely grateful — I sat down with every member of the BDS NYIFUP team and asked them what type of hiring we should do to provide better services to our clients. My staff overwhelmingly said, if we had more social work support, we could do so much more to help stabilize our client’s statuses and other factors in their lives, and ensure they don’t come back to immigration trouble or to the same points of crisis in their lives. We were able to expand our social work services this year, and for that I want to sincerely thank the Council. It is making a difference.

Our clients’ stories demonstrate the value of social work support and the ways that the City supports our clients through important services.

Client Stories
Daniel from Jamaica
Daniel is a gay man from Jamaica who experienced severe homophobia and violence from his own family and from ordinary citizens in Jamaica, including having stones thrown at him and being chased by police. He came to the U.S. seeking asylum, but ended up in ICE detention because of a prior fraud conviction. NYIFUP staff worked very hard presenting Daniel’s case, and as a result, the immigration judge agreed that he has been persecuted in Jamaica and that he faced possible torture or death if he returned based on his sexual orientation and the rampant homophobic violence we documented there. Because his single conviction barred him from asylum, he was granted an alternate form of relief, deferral of removal under the Convention Against Torture. He was released from detention after many months and began building a new life.

However, Daniel had a lot of difficulty accessing city and other services because people did not understand the status he had been granted. He initially was turned away for Medicaid and Essential Plan eligibility, and only after our NYIFUP social worker and a health insurance navigator at another organization stepped in, he was finally enrolled in the Essential Plan and will be able to access medical care. Daniel then went to apply for Safety Net assistance, but was turned away twice by an employee who believed that a person without a Social Security number was not eligible. Again, with the assistance of our social worker and a lawyer from the Legal Aid Society, we sent Daniel back a third time armed with a cover letter and documents. Daniel asserted himself and asked for a supervisor, and the supervisor agreed he was eligible and that she would re-train her staff. Daniel is now going to be able to worry less about his day to day survival and will be pursuing jobs and education programs that will help him become a productive New Yorker.

Mr. C from Mali
Mr. C is a French-speaking asylum seeker from Mali who was persecuted by his own family and community because he is gay, including being stabbed by his own father. He fled Mali and asked for asylum at the U.S. border. He was initially released on parole and changed his residence to New York, in part because he had heard New York City is a welcoming place for gay men where he could find a supportive community.

At an immigration check-in where Mr. C was not provided an interpreter, a miscommunication led to him being re-arrested and detained without bond, which was deeply traumatizing to him. Mr. C obtained a French-speaking attorney through NYIFUP who started advocating for his release. His mental health deteriorated rapidly in detention, and he attempted suicide and was hospitalized. Scared for his safety, BDS filed a habeas corpus petition in federal court and demanded his immediate release rather than his return to ICE detention, which the hospital staff were concerned would continue to affect his mental health. After two tense weeks of negotiation, Mr. C was released.

BDS’s in-house social worker connected him with New York City’s unique array of services and support, including a support group at Gay Men of African Descent, a GED class, and an employment program. He has referred to his NYIFUP team as his “family.” He has gotten his OSHA certificate, is eager to contribute to his new hometown, and will finish his strong asylum case with his NYIFUP team by his side.

Recommendations
As our client stories show, legal service providers are well-situated to assess our clients’ needs and connect them with voluntary services that will impact both the outcome of their legal case and the quality of their life. On a regular basis we connect our clients with GED classes, OSHA certification or other professional training programs, affordable housing, educational advocacy, support groups, community groups, family and individual therapy, civil legal services advocacy, assistance with family court cases, and any other issue that may arise. We have had a number of extremely positive experiences getting our clients connected to the shelter system, benefits, education, and other services and are very grateful to New York City for its resources. While our social workers are skilled at helping our clients find programs and services, they can waste significant amounts of time trying to track down the correct contact information.

We recommend that the Council work with city agencies such as HRA and MOIA to establish an immigrant families support task force that would create a formal space for representatives from city agencies and nonprofit providers to meet and discuss challenges to coordination. It would also be useful if BDS and other service providers had the names and phone numbers of agency employees who are willing to serve as agency point-people for non-profit providers. The task force could brainstorm ways to improve agency coordination and report back to the council with legislative recommendations, if necessary.

It would be especially useful if we could communicate more easily with city agencies while clients are still detained to get as much of an idea as possible of what types of services our clients would likely be eligible to apply for if they are released from detention. Our clients’ bond or merits cases are often highly dependent on convincing an immigration judge that we will be able to connect them to some resources to continue their positive path upon release.

We would also welcome the opportunity to help educate city agencies about some of the more “unusual” or lesser-understood immigration statuses that our clients have and what different court and agency paperwork means. For example, NYIFUP wins many cases where the client ends up with both a removal order and a suspension of that removal order because the client faces significant danger if deported. These clients have orders of supervision, grants of withholding of removal and protection under the Convention Against Torture, and paperwork that does not look like the paperwork of people with asylum or refugee status. In addition, clients who win their cases in immigration court have paperwork that can look different than those of clients who win status before the immigration agencies. They can thus struggle to get the benefits they are eligible for. If there is any way we can help with training or provide examples of our client’s statuses, paperwork, and stories, we would love to do so.

Conclusion
New York City is doing more for immigrant families than any other city in the country. NYIFUP is the perfect testament to City Council’s commitment to our immigrant communities. We believe that increased coordination between city agencies and community-based providers would be helpful in ensuring that New Yorkers are able to access the thousands of resources that are available to them. Opportunities for dialogue and communication, and even a simpler way for providers like us to have regularly updated contact information or to have point people within HRA or within other agencies would go a long way in facilitating coordination.

Of course, we also hope that you will continue to support the legal services and wrap-around services that are provided through NYIFUP, and continue to support the inclusion of social work as an integral part of our high quality legal services. I assure you that our amazing social workers have helped ensure that our clients are able to maintain stable immigration status that we fought so hard for, and to help them access support, community, healing, and a path to economic independence and contribution to this city.

Thank you for your consideration of my comments. We are grateful to the Council for its continued attention to the needs of immigrant families.  Please do not hesitate to reach out to me with any questions about these or other issues at (718) 254-0700 (ext. 434) or asaenz@bds.org.

News

BDS TESTIFIES AT CITY COUNCIL ON REDUCING JAIL POPULATION

Brooklyn Defender Services strongly supports the City’s efforts to reduce the number of people who await trial on Rikers Island. In 2015, 67,672 people were admitted to New York City jails, with an average daily population of 10,240.[1] During this period, approximately 13,100 people arraigned in Brooklyn courts spent time on Rikers Island, 89% of who were identified as “African-American” or “Hispanic.”[2] Roughly 75 percent of people on any given day at Rikers Island are there in pretrial detention – presumed innocent under the law and ostensibly waiting for their day in court. Yet the reality is that judges and prosecutors are just waiting for them to plead guilty.

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BDS TESTIFIES AT CITY COUNCIL ON CIVILIAN COMPLAINT REVIEW BOARD & POLICE ACCOUNTABILITY

Never before in the history of our organization has police accountability been so prominently an issue of popular national importance. Just four years ago drag-net Stop & Frisk was being defended as an essential policing tactic, responsible for saving tens of thousands of lives despite research that questioned this causality and obvious constitutional concerns. While we welcome the national, progressive attention on these issues, to which our clients are often at the receiving end, we must acknowledge how we got here: long-standing police abuses coming into the light due to lawsuits, civilian documentation and protest. The deaths of Eric Garner and Ramarley Graham at the hands of the New York Police Department, and the public’s perception of a lack of accountability for the officers involved, especially as compared to the extensive punishment regimes for civilians in criminal court, have driven a significant interest in this topic both locally, nationally, and even internationally.  More

BDS TESTIFIES BEFORE CITY COUNCIL ON NEW JAIL BILLS

TESTIMONY OF

Kelsey DeAvila – Jail Services Social Worker

BROOKLYN DEFENDER SERVICES

Presented before

The New York City Council Committee on Fire and Criminal Justice Services

Hearing on

Proposed Legislation Int. 0899-2015, Int. 1014-2015, Int. 1064-2016, Int. 1144-2016, Int. 1152-2016A, Int. 1228-2016, Int. 1260-2016, Int. 1261-2016, and Int. 1262-2016

September 26, 2016

My name is Kelsey DeAvila. I am the Jail Services Social Worker at Brooklyn Defender Services (BDS). BDS provides innovative, multi-disciplinary, and client-centered criminal, family, and immigration defense, as well as civil legal services, social work support and advocacy, for over 40,000 clients in Brooklyn every year. Approximately 6,000 of our clients will pass through city custody each year, most of who are incarcerated pretrial because prosecutors ask for and judges set bail in amounts that they cannot afford.

The legislation before this Committee today is integral to reforming our jail system. Each of the bills seeks to address injustices our clients experience while incarcerated in city custody. We appreciate the initiative the Speaker, the Council, and the Public Advocate have taken in introducing these bills and thank chair Elizabeth Crowley for calling this hearing. We previously submitted testimony regarding introductions 0899-2015, 1014-2015, 1064-2016 and 1144-2016. We refer the Council to our previous testimony regarding those pieces of legislation and wish to extend our strong support for their adoption, again.

We also support each piece of legislation under consideration by hearing today, and will share the experiences of our clients to illustrate why these bills are necessary to protect the dignity of our clients and their families. We will offer a few suggested amendments which we think will aid the bills in realizing their intent.

Intro 1152-A re: Maximum fee allowed when transferring money to a city inmate

BDS supports this introduction from the Public Advocate to cap the fees charged by private companies when community members send money to their loved ones in city jails. It is disturbing that the same poor families that cannot afford to buy their loved one’s freedom are forced to pay exorbitant fees to JPay and Western Union in order to send the little money they can afford to support their loved one in city jails. Commissary funds sent from the outside are essential to our clients’ lives while in custody. These funds are used to pay for phone calls that maintain community ties, essential toiletries and hygiene products, as well as food to supplement what is universally-described as inadequate and often inedible meals.

A family member’s incarceration often means loss of income for the family at large, and a drain on resources for shared responsibilities like childcare. In this context, any money that is sent to an incarcerated client should be viewed as a tremendous hardship. That this hardship is compounded by fees that can cut in half the amount of money the client ultimately receives is simply unacceptable.

Recommendations related to Int. 1152-A

This bill is an important first step towards protecting families of people accused of crimes, but the Council can go even further. We urge the council to take similar action to cap, or better yet, eliminate, the myriad other fees poor New Yorkers are saddled with while in custody.

Eliminate or cap fees on inmate phone calls

Making a fifteen-minute call home costs people in jail several dollars – the bulk of which is paid to Securus, a private company operating on the same dubious premise as JPay – to profit on the detention our city’s poorest residents. It is unclear how many millions of dollars Securus makes every year, though we know that the City anticipates $6 million per year from “inmate telephone fees.”[1]

Lower commissary prices

Similarly, basic goods available through commissary are subject to steep mark-ups collected by private vendors. A recent federal lawsuit out of Oklahoma that has remarkably survived to the discovery stage has shed significantly light on the unconscionable markups that prisoners face to obtain necessary commissary goods.[2]

Eliminate jailhouse fines and fees

The Department of Correction levees steep fines for basic infractions in the jail for things like a dirty cell or talking back to staff. These fees are charged to incarcerated people’s accounts, depriving funds otherwise used to maintain contact with family or basic hygiene.

It’s essential for the City to look at all the fees people incarcerated in City Jails are forced to pay during the course of their confinement. It is our position that many of these services should be the obligation of the City. People should not be forced to rely on a private contractor to meet the essentials of life while incarcerated.

Intro 1261 re: Authorizing the waiver of fees in the collection of cash bail

For the same reasons, BDS supports the Speaker’s legislation which would allow for a waiver of fees that families pay on top of cash bail. For most families, paying bail is a significant financial hardship. The three percent surcharge on cash bail comes as a surprise to families who have scraped together just enough to buy their loved-one’s freedom and the waiver will come as a welcome relief.

Recommendations about Int. 1261

We urge the Council to consider requiring a waiver of cash bail fees in all cases, rather than leaving it discretionary.

The City should create a campaign to educate the public about claiming cash bail.

The City’s unclaimed funds accounts consistently note unclaimed bail money as a significant contributor. This is because many people do not know that they can recover cash bail money at all at the end of the case.[3] The City could rectify this by increasing the availability of know your rights literature in the court houses and by reminding people of their right to cash bail monies at the conclusion of each case.

The Council should continue to push judges and prosecutors to reduce bail amounts unlawfully used to detain people pre-trial.

Ultimately the City could also be playing a larger role in reducing bail amounts used by judges and prosecutors to preventatively detain people before trial. Reductions in bail amounts would dampen the financial impact of this system.

The City should investigate its relationship with commercial bail bonds.

Additionally, and as it relates to the bills discussed above, the City should consider the role it plays in facilitating the use of Commercial Bail Bonds, private companies like J-Pay and Securus, that profit off the misery of incarceration. The bail bond process ensures that hundreds of thousands of dollars in non-refundable fees and premiums move from the communities that can least afford it, into the hands of private, for-profit companies backed by some of the largest insurance companies in the State.

Intro 1228-A re: Investigating, reviewing, studying and auditing of and making of recommendations relating to the operations, policies, programs and practices of the DOC by the commissioner of the DOI
BDS supports the Speaker’s introduction to codify the role of the Department of Investigation (DOI) in city jails. An independent rule-making body – the Board of Correction – and more independent investigations, should play an important role in moving our jails toward more humane and just conditions.  Although DOI already has the authority to investigate criminal or corrupt activities by DOC staff, the Department of Corrections has been left to police itself in too many instances.

Client Stories

In one case, a BDS client was raped by a Corrections Officer and had retained physical evidence of the attack.  Despite the seriousness of the allegation and the evidence showing that the allegation was credible, within 48 hours of the report, DOI had authorized DOC ID to conduct the investigation.  DOI had not interviewed the victim or the officer, nor had they made an effort to collect the physical evidence.

DOC ID has a disturbing track record in conducting these investigations – none of the more than more than 60 alleged sexual assaults by staff were referred for prosecution in 2014.[4]  We hope that clear guidance from the Council delineating a broad but specified range of investigations to be conducted by DOI will prevent such miscarriages of justice in the future.

Recommendations related to Int. 1228-A

In general terms, we believe DOI should be required and adequately funded to conduct investigations in any incident where an incarcerated person is injured, alleges sex abuse, or when correctional staff break the law. The Board of Corrections’ Minimum Standards are city law governing correctional policies and practices in New York City. When the law is broken because Department staff failed to abide by the Minimum Standards, DOI should be empowered to investigate violations, be required to report its findings, and ensure staff is held accountable.

The notion that the DOC could be authorized to investigate its own staff in serious cases is in part what led Rikers Island down the path to the mess we face today.  The recent conviction of several correctional staff in the brutal beatings of Jamal Lightfoot and Ronald Spear, and subsequent cover-ups, should serve as prescient reminders that outside investigations are foundational to uprooting the culture of opacity and violence that has plagued Rikers Island for too long. We are happy to engage with the Council in more detail and offer our expertise as you craft any amendments to the charter going forward.

Intro 1260 re: Transporting inmates in the custody of the DOC to all criminal court appearances

BDS supports introduction 1260 from the Speaker, which requires that all people in custody be produced for court appearances. The express purpose of pretrial detention is to ensure appearance at court, and it is foundational to principles of justice that people who are incarcerated before they are convicted be present in court to participate in their own defense. We have not seen data that suggests the DOC production rate is higher than the adjusted Failure to Appear Rate on ROR, which is less than 2 percent. Moreover, on any given court date, a client may be released, evaluated for an alternative to incarceration program, mental health or drug court placement, or they may be offered a plea. When any person misses a court date, it may prolong their incarceration, close doors to possible off-ramps from the system, and exacerbate associated collateral consequences.

The proposed legislation may not solve every problem with production – for example that of falsified refusals – however, we believe it is an important reminder of the purpose our jails are intended to serve. There is not city-wide documentation to properly ascertain the extent of this problem.

Recommendations related to Int. 1260

We recommend that the Council consider two important amendments to this legislation.

The bill should require that people be produced in the morning hours to their court appearances.

In Brooklyn Supreme Court, many court parts close at the lunch break and do not re-open in the afternoon. Consequently anyone brought to court after noon may not actually appear in court.

The bill should address transportation by DOC to any court date, not just those in criminal court.

This legislation should impact more than just criminal court appearances. In addition to their criminal cases, people in custody often have other intersecting cases in Family, Housing, and other civil courts. It is imperative that that the Department of Correction produce people to every court date as a matter of access to justice.

Intro 1262 re: Prohibiting DOC from producing inmates to court appearances in departmental uniforms

BDS vociferously supports this legislation requiring that people be produced to criminal court appearances in civilian clothing. Producing people to court in jail garments is prejudicial not only to juries but can inspire implicit biases in judges and court staff.  It is simply more just for all people to appear in court in their own clothing – to appear innocent before proven guilty.

Despite constitutional protections ensuring that people who appear before a jury do so in civilian clothing, in recent months a number of our clients were produced to court on their grand jury dates wearing jail uniforms.[5]

Client Stories

In one recent incident when the individual intended to testify, their grand jury was adjourned in order to allow DOC to produce the person again in civilian clothing, thereby unjustly extending their incarceration. At least one trial was recently delayed because our client was denied his trial clothing despite multiple requests to correction officers, and calls to DOC from the court as well as our office. Every day our Jail Services staff fields urgent requests from attorneys at Court for clothing, both for trials and for releases. BDS relies on clothing donations to meet this demand. These jail uniforms are thrown out once people get street clothing, and the replacement of these must be a considerable expense for the City.

Although the Department has assured the Board of Correction that they receive “trial lists” daily to alert them of individuals who should be produced to court in civilian clothing – this is not an adequate guarantee.[6] Many trials begin after being “sent out” from a regular court appearance, and these individuals would not have been produced in appropriate clothing.  Our experience suggests that grand jury appearances also are not consistently listed on the “trial lists” used by the Department.  The right to appear as a civilian before a jury is fundamental to our justice system. This legislation is essential to protect this right from poor management on the part of the Department, which clearly does not understand the mechanics of criminal proceedings.

Another disturbing side-effect of producing people to court in jail garb is that they are released back to the community in jail garb. The nature of criminal proceedings can be unpredictable – frequently people are released to programs or on Recognizance unpredictably. Releasing people in jail uniforms is both degrading and dangerous.

Despite assurances that DOC would make civilian clothing available in courthouses, people are still routinely discharged from court in jail uniforms.  In one recent case, the judge was concerned about our young female client’s release in jail uniform and refused to release her until BDS brought clothing to the courthouse for her because court and DOC staff reported that they would not do so. In another recent instance a 16 year old client we represented was released from Rikers and was terrified of returning to his neighborhood in the uniform for fear of the police and gangs in the area. BDS was happy to provide him with clothing to make the journey home, but the defense bar should not be made to play this role. If anyone is to be produced to court in a uniform it is essential that the Department be required to provide civilian clothing for those discharged from court under the law.

Again, we urge the Council to extend the sensible reforms included in this bill by amending the language to include other courts – the issues of prejudice and dignity hold in those settings as well.

Conclusion

We thank the Council for its continued attention to the needs of people in city jails and their families. We hope that you continue to adopt an aggressive stance toward making New York City humane for all people. To that end, we urge you to explore legislation that will cap unreasonable fees across the system. We also urge you to investigate the disturbing conditions families endure when they visit their loved-ones on Rikers Island.[7] On a good day, the process is degrading and can take many hours.  On a bad day, it can involve sexual assault by corrections officers, or being denied a visit altogether.

Thank you for your consideration of my comments. We are grateful to the Council for bringing to light the issues these important criminal justice issues.  Please do not hesitate to reach out to me with any questions about these or other issues at (718) 254-0700 (ext. 208) or kdeavila@bds.org.

 

[1] New York City Office of Management and Budget, November 2015 Financial Plan: Revenue 2016-2019, p. 47 (published Nov. 12, 2015), available at http://www.nyc.gov/html/omb/downloads/pdf/nov15_rfpd.pdf.

[2] Casey Tolan, “How one inmate discovered his private prison was ripping him off – and took his warden to court,” Fusion, Sept. 19, 2016, available at http://fusion.net/story/348070/geo-group-lawton-commissary-michael-leatherwood-lawsuit/.

[3] To learn more about cash bail refunds, visit https://www1.nyc.gov/site/finance/sheriff-courts/courts-cash-bail-refunds.page.

[4] See Amicus Brief in Support of Leave to Appeal Denial of Class Certification at 14 (Declaration of Public Advocate Leticia James), Doe v. City of New York, No. 15 CV 03849 (S.D.N.Y.  filed Oct. 9, 2015), available at http://pubadvocate.nyc.gov/sites/advocate.nyc.gov/files/james_declaration.pdf

[5] See Estelle v. Williams, 425 U.S. 501, 512 (1976).

[6] Board of Correction November 10, 2015 Meeting Minutes at page 5, available at http://www1.nyc.gov/assets/boc/downloads/pdf/BOCMinutes%20(11.10.15).pdf.

[7] See, e.g., NBC 4, “I-Team: More than 25 women allege sex abuse by correction officers at NYC jails,” Sept. 15, 2016, available at http://www.nbcnewyork.com/investigations/Rikers-Island-Sex-Abuse-Correction-Officer-Lawsuit-Claim-Investigation-Department-Correction-393576031.html.

BDS TESTIFIES BEFORE CITY COUNCIL ON WRONGFUL CONVICTIONS

TESTIMONY OF:

Yung-Mi Lee – Supervising Attorney, Criminal Defense Practice

BROOKLYN DEFENDER SERVICES

Presented before the New York City Council Committee on Courts and Legal Services and Committee on Public Safety 

Hearing on Wrongful Convictions: Using Evidence-Based Procedures and Technology to Keep Innocent People Out of Jail

September 23, 2016

My name is Yung-Mi Lee. I am a Supervising Attorney in the Criminal Defense Practice at Brooklyn Defender Services (BDS). I have practiced as a criminal defense attorney in New York and New Jersey for over 22 years. I currently represent misdemeanor and felony clients in Brooklyn criminal and Supreme Court.

BDS provides innovative, multi-disciplinary, and client-centered criminal, family, and immigration defense, as well as civil legal services, social work support and advocacy, for over 40,000 clients in Brooklyn every year. We thank the City Council Committee on Courts and Legal Services and the Committee on Public Safety for the opportunity to testify about wrongful convictions in New York City.

Wrongful Convictions in Brooklyn

More than a dozen people prosecuted in Kings County have been exonerated in recent years.[1] Common factors in the wrongful convictions of these innocent men include unreliable witness identifications, false confessions, and prosecutor’s withholding of evidence from the defense.

Evidence-based procedures and technology can play a critical role in protecting against false confessions and mistaken or improper eyewitness identifications. The electronic recording of interrogations, from beginning to end, is the single best reform available to prevent wrongful convictions caused by false confessions. Complete recording improves the credibility and reliability of authentic confessions, while protecting the rights of innocent suspects.[2] In addition, the Innocence Project endorses a range of procedural reforms to improve the accuracy of eyewitness identification. These reforms have been recognized by police, prosecutorial and judicial experience, as well as national justice organizations, including the National Institute of Justice and the American Bar Association. The benefits of double-blind identification procedures, for example, are corroborated by over 30 years of peer-reviewed comprehensive research.[3]

As the Innocence Project notes, numerous states have implemented evidence-based practices as standard procedure to prevent wrongful convictions. There is no doubt that New York City should join these jurisdictions. That being said, some bar associations, including the New York State Association of Criminal Defense Lawyers, among others, have expressed significant concerns about the Statement and Identification Integrity Act introduced over the last few years before the NYS legislature.[4] One major concern that defense attorneys have with the proposed legislation is that the bills do not reform harmful and outdated discovery procedures. It is no surprise that the majority of states that have enacted double-blind interrogations and/or mandatory recorded interrogations are also states that have modern discovery statutes.

As defenders who practice every day in Brooklyn courtrooms, BDS recognizes the impact that improved ID procedures and complete recordings of interrogations could have in our cases. But that evidence is only useful to us if the discovery attendant to those practices is turned over by the prosecutors. Under current state law, prosecutors are not required to disclose critical evidence against our clients until the eve of trial. This requires us to advise the vast majority of clients on plea agreements without the benefit of full discovery, or, in the rare cases that do proceed to trial, to sift through thousands of pages of evidence like witness interviews, or phone or social media records mere hours before selecting a jury.

Mr. R, a BDS client, was charged with the attempted murder of two people. His arrest and prosecution for the case were based on a single eyewitness identification. In this case, the prosecutor chose not to turn over discovery for over a year, until the Friday before trial. The discovery turned over included reports of a photo array which included our client’s picture.  The two shooting victims viewed the photo array.  The first did not choose our client as the shooter. The second offered only an equivocal identification, saying he thought our client might have been the shooter.  The discovery package also revealed that our client was not a suspect at the time of the photo array. His photo had been randomly inserted into the array. The day after the equivocal photo identification, the police conducted a line up and the second witness identified our client. Furthermore, the discovery package revealed critical ballistics evidence that showed that the same gun had been used in another shooting involving different people, not our client. This necessitated additional investigation and discovery and required pushing out the trial date again at the last date.

Mr. R may have benefited from evidence-based identification procedures. Indeed, he never would have been implicated in the case but for the improper photo array. But a double-blind eyewitness identification procedure would not have ameliorated that initial taint. The only way that defense attorneys can challenge improper or illegal actions that occur at any stage of the case is when we have complete discovery. If Mr. R had not proceeded to trial, and simply taken a plea because he was tired of sitting on Rikers Island for more than year, none of this information would have come to light.

Additionally, while the Brooklyn DA’s office has more recently been turning over videotapes of interrogations, we remain concerned about the police interaction prior to the video interrogations.    We have had plenty of cases where oral statements have been taken from our clients and then because the “cat’s out of the bag” the police or prosecutors begin videotaping the confession.  Oftentimes, our clients have already been in custody for a lengthy time and are not even aware that their arrest may have been illegal.   What is most critical in a false confession case is the events that lead up to the confession and in order for defense attorneys to properly litigate the legality of these confessions, we must have complete and early discovery.

Justice requires that prosecutors turn over all of the evidence in the case to the defense as early as possible and automatically. If City Council is truly committed to preventing wrongful convictions, you must work with defenders and other community groups to publicly push prosecutors to provide full disclosure in all cases and call upon the state legislature to pass comprehensive discovery reform.

Recommendations

The solution to New York’s discovery issues is already available. The New York State Bar Association (NYSBA) brought together a diverse committee of judges, law professors and lawyers to examine the statute and propose changes.  Their 2015 report[5] provides a model for reform that should be adopted by the state legislature to bring New York’s discovery requirements in line with the rest of the nature.

City Council should pass Res. 430-2014 (King), a resolution calling on the New York State Legislature to pass and the Governor to sign, legislation to amend the Criminal Procedure Law Article 240 and replace it with a law mandating early, open, and automatic pre-trial discovery. Passage of the resolution would send a strong message to the legislature of the urgency of reform.

City Council should also work with the Mayor’s Office of Criminal Justice and local prosecutors to encourage those in boroughs with outdated and draconian policies to turn over discovery in its entirety as soon as they obtain it. Justice demands nothing less.

Conclusion

There is no doubt that misidentifications and forced confessions impact New York City residents. The hundreds of people who have been wrongfully convicted can attest to that. But reform on these issues must proceed in tandem with discovery reform. Evidence-based procedures and technology are only useful to defendants if their attorneys receive this information early on and completely. We look forward to working with City Council to determine how we can ensure justice in our communities by reforming current discovery policies across the five boroughs and throughout the state.

 

[1] See, e.g., Colleen Wright, “Another Exoneration in Brooklyn Brings Total Since Last Year to 14,” N.Y. Times, Aug. 4, 2015, available at http://www.nytimes.com/2015/08/05/nyregion/another-exoneration-in-brooklyn-brings-total-since-last-year-to-14.html.

[2] Innocence Project, “False Confessions and Admissions,” available at http://www.innocenceproject.org/causes/false-confessions-admissions/.

[3] Innocence Project, “Eyewitness Identification Reform,” available at http://www.innocenceproject.org/eyewitness-identification-reform/.

[4] See Testimony of the New York State Association of Criminal Defense Lawyers before the New York City Council Committee on Public Safety re: Res. No. 979 (April 6, 2016).

[5] New York State Bar Association, Report of the Task Force on Discovery (2015), available at https://www.nysba.org/WorkArea/DownloadAsset.aspx?id=54572.

BDS TESTIFIES BEFORE CITY COUNCIL ON FAMILY ENGAGEMENT OF DETAINED YOUTH

TESTIMONY OF:

Rebecca Kinsella – Youth Social Worker 

BROOKLYN DEFENDER SERVICES

 

Presented before

The New York City Council Committee on Juvenile Justice

Oversight Hearing

on

Examining Family Engagement for New York City’s Detained and Placed Youth

September 21, 2016

 

My name is Rebecca Kinsella. I am a youth social worker at Brooklyn Defender Services (BDS). BDS provides innovative, multi-disciplinary, and client-centered criminal, family, and immigration defense, as well as civil legal services, social work support and advocacy, for over 40,000 clients in Brooklyn every year. I thank the City Council Committee on Juvenile Justice and Chair Fernando Cabrera for the opportunity to testify today about the many ways that the City Council can foster engagement between detained youth and their families.

Brooklyn Defender Services’ has a specialized adolescent unit, called the Brooklyn Adolescent Representation Team, or BART. Our team represents over two thousand adolescents ages 13-21 annually. In the past five years, BART has represented over 150 youth ages 13-15 charged with JO offenses, many of whom are detained in ACS facilities pre-trial. My caseload includes adolescents detained at Crossroads, an ACS detention facility in Brooklyn, as well as young people detained on Rikers Island. While ACS offers family days on weekends that have gone a long way in promoting family engagement, there is still more that they could be doing to limit the harm to youth in their custody. If the City Council is truly committed to protecting court-involved youth, they must act to move 16- and 17-year-olds off of Rikers Island as quickly as possible to limit the pervasive violence that harms detained youth and their families who visit them.

Introduction

J is a 15-year-old client charged under the Juvenile Offender statute in Kings County Supreme Court. For the past 17 months, he has been detained at Crossroads in Brooklyn. While he awaits trial or disposition of his case, J has been very active in school and has made the most of the programming that is provided at Crossroads. Many staff have acknowledged his growth and increased maturity since arriving at Crossroads. However, J’s mother has several other young children, making it difficult for her to visit regularly. Crossroads staff reported to me that they have seen J fall into a depression because he rarely has visits from his family. While J’s mother wants to be a support to her son during this extremely trying time in his life, her caregiving responsibilities and economic challenges limit her ability to visit him at Crossroads. ACS, with the City’s support, can and should do more to promote family engagement to ensure that J and his mother and siblings continue to reconnect to limit tension and instability when he eventually returns home.

Family engagement during detention is critical to minimize harm to youth and the family upon reentry to the home. We represent many young people in adult court who return home from juvenile detention without sufficient support and are quickly re-arrested because of fights in the home. When the youth arrives in arraignments, DAs ask for and judges frequently issue an order of protection, preventing the youth from returning home, effectively making him or her homeless. According to Covenant House, 50% of adolescents aging out of foster care and the juvenile and criminal justice systems will be homeless within six months. When youth are kicked out of the home or ordered out of the home by a judge they have very few options because many are unprepared to live independently, have limited education and no social support. This leads to couch surfing, repeated shelter visits, trading labor or sex for a place to stay, and all too often, another round of criminal justice involvement.

Parental and family engagement by the juvenile justice system is proven to be effective for better youth outcomes. A National Academy of Sciences report cited evidence that a relationship with a parent or other adult figure can have a positive impact on an adolescent, serving as a protective buffer against external negative influences. Other research has shown that family visitation for youth is associated with better behavior and improved academic performance. And it is clear that most families want to play a bigger role: in a survey of family members, 86 percent said they wanted to be more involved in their children’s treatment while they were incarcerated (Justice for Families, 2012).[1]

This hearing and any successfully implemented recommendations that come out of it will not only foster family engagement but may have the additional effect of preventing future criminal justice involvement and youth homelessness, ultimately keeping our communities and our young people safe.

Family Engagement at Crossroads and Horizons

BDS represents youth detained at Crossroads in Brooklyn and other ACS, OCFS, DOC and DOCCS facilities across the City and State. While Crossroads makes more concerted efforts to ensure family engagement than “adult” facilities, there remain many areas for improvement.

Problem 1: Restrictions on who may visit limit opportunities for family engagement.

Families in the twenty-first century often include parents, caregivers and siblings who may not be blood relatives. Yet ACS’ visitation policies do not always take these realities into account. For example, siblings are not allowed to visit Crossroads without a birth certificate and the parent that accompanies the sibling must be a biological parent. These rules make visiting difficult for many loved ones. A parent who does not have a birth certificate for a young child will be turned away from the visit when they fail to bring the birth certificate or are forced to find childcare. Siblings who miss their brother or sister are unable to visit unless the parent that accompanies them is a biological one. These rules have the adverse effect of limiting family engagement and harming young people who need the support of their loved ones while they are incarcerated.

Solution: The City should call upon ACS to allow people to define their own families without requiring the presentation of birth certificate or the presence of a biological parent. The City should also fund childcare during visiting hours so that parents can bring young siblings to the facility.

Problem 2: Visiting times are limited and inaccessible for many parents.

As noted above, many of our client’s parents and loved ones have other children in the home that they are supporting. Requiring parents to take time off work or away from the home is a significant barrier for many parents who live paycheck to paycheck or who have caretaking responsibilities.

Solution: The City Council should require ACS to offer a greater variety of visiting times to accommodate parent work or caregiving schedules.

Problem 3: Crossroads is far from the subway and other public transportation.

Public transportation in East New York is limited and infrequent. This makes traveling to Crossroads difficult for parents who are negotiating work and childcare obligations.

Solution: The City should both improve transportation options in East New York and should also fund a van or shuttle system that could pick parents up at their homes or central neighborhood locations (like libraries) and take them to Crossroads, Horizons and Rikers.

Problem 4: Lack of privacy during visits and phone calls

Visiting rooms at both Crossroads and Horizons are large and parents meet when their children without any privacy. Caseworkers allow youth to call their parents or guardians for 10, 20 or 30-minute intervals, depending on their behavior. However, calls are not private. This lack of privacy negatively affects family relationships because, often times, neither parent nor child feels like they may speak candidly.  This also discourages open conversations about the case and plea offers, leaving adolescents forced to choose between discussing the private details of their case in a public space or in front of their caseworkers, or making life changing decisions on their own without family support.

Solution: ACS should work with defenders and other stakeholders to determine how to allow youth and their parents private opportunities to speak to discuss their case and other confidential concerns.

These concerns aside, I want to acknowledge and ask the Council to support ACS in continuing family days on weekends. On family days, siblings and parents are invited to the facility to spend the day with their loved one on site and engage in special programming that may involve food, games or art. A recent family day at Crossroads involved the presentation of a mural that the young people had painted.  Family days provide an important opportunity for youth, their parents and their siblings to celebrate the adolescents successes and reconnect as a family.

Family Engagement at Rikers Island

The youth that I represent on Rikers Island are no different from their younger peers in ACS facilities, except that they face significantly more trauma while awaiting their trials on Rikers.

Problem 5: Young people on Rikers face sexual assault and violence on a daily basis.

Pre-trial detention at Rikers Island has a devastating effect on youth and their families. The horrors that youth experience on Rikers Island are well-documented, and include physical and sexual abuse, estrangement from their families because of the barriers to phone calls and visits, and limited educational and programming opportunities. [2]

Solution: The City Council should ensure that 16- and 17-year-olds are removed from Rikers Island and transferred to ACS facilities as soon as possible. ACS facilities do a better job of protecting young people in their custody than youth detained in NYC Department of Corrections facilities. In BDS’s experience, youth in ACS detention facilities have better access to programming, are better able to maintain relationships with their families, and suffer less abuse at the hands of facility staff and other young people.

Mayor Bill De Blasio announced in July that the Mayor’s Office of Criminal Justice has a plan to move the 200 16- and 17-year-olds currently on Rikers to Horizon Juvenile Center within four years and at a cost of $300 million.[3]  We believe that the timeline and proposed cost are grossly overestimated and urge the City Council to work with the Administration to move the young people to ACS facilities more quickly.

Problem 6: Parents face sexual assault and violence when they attempt to visit their children at Rikers.

Visiting Rikers is nothing short of a nightmare. Rikers guards regularly sexually assault our clients’ family members. They are subject to strip searching and body cavity searches. Just last week NBC 4 I-Team reported on 25 women who have come forward alleging that correction officers at NYC jails abused them when they came for visits.[4] Many parents travel for hours, enduring the humiliation of searches and only to arrive at Rikers to learn that their child will not be allowed to see them that day or that the facility is on lockdown.

Solution: City Council should work with the Board of Corrections and the NYC Department of Corrections to ensure that these unlawful and abhorrent practices cease immediately. In the longer run, the Council should work with the Independent Commission on NYC Criminal Justice and Incarceration Reform, along with other stakeholders such as defender offices, to shut down Rikers Island as quickly as possible and divert people from DOC facilities as they await resolution of their cases.

Conclusion

The challenges facing court-involved youth are immense. City Council efforts to support family engagement during incarceration would go a long way in supporting our young people, making our communities stronger and safer and preventing youth homelessness.

Thank you for your consideration of my comments. We are grateful to the Council for bringing to light the issues the barriers that separate detained youth and their families.  Please do not hesitate to reach out to me with any questions about these or other issues at (718) 254-0700 (ext. 362) or rkinsella@bds.org.

 

[1] Vera Institute of Justice, “Family Engagement in the Juvenile Justice System,” available at http://archive.vera.org/sites/default/files/resources/downloads/family-engagement-juvenile-justice.pdf.

[2] See, e.g., Legal Aid Society, Testimony of Nancy Ginsburg before the Committee on Fire and Criminal Justice Services and Committee on Juvenile Justice, Oct. 8, 2014, available at http://www.legal-aid.org/media/189855/testimony_10.8.14.pdf (detailing abuse and trauma perpetrated against youth detained on Rikers Island).

[3] William Neuman, “New York City wants to move 160 and 17-year-olds from Rikers Jail to Bronx Center,” N.Y. Times, July 20, 2016, available at http://www.nytimes.com/2016/07/21/nyregion/rikers-jail-youths-bronx-center.html?_r=0.

[4] NBC 4, “I-Team: More than 25 women allege sex abuse by correction officers at NYC jails,” Sept. 15, 2016, available at http://www.nbcnewyork.com/investigations/Rikers-Island-Sex-Abuse-Correction-Officer-Lawsuit-Claim-Investigation-Department-Correction-393576031.html.

BDS TESTIMONY BEFORE THE NYC COUNCIL ON CIVIL FORFEITURE

TESTIMONY OF 

Anca Grigore – Staff Attorney, Civil Justice Practice

BROOKLYN DEFENDER SERVICES

Presented before

The New York City Council Committee on Public Safety

Hearing on Int. No. 83, Pro. Int. No. 728A, Int. No. 834, Int. No. 1000 and Reso. No. 1181

Local Laws relating to reporting of CPR and AED certification among NYPD officers, publication of the NYPD patrol guide, use of all-terrain vehicles, and reporting on civil forfeiture, and a resolution calling upon the New York State Legislature to pass Briana’s Law, respectively.

 

September 15, 2016

 

My name is Anca Grigore and I am a Staff Attorney in the Civil Justice Practice at Brooklyn Defender Services (BDS).  Thank you for this opportunity to address the New York City Council Committee on Public Safety.  BDS provides multi-disciplinary and client-centered criminal, family, and immigration defense, as well as civil legal services, social work support and advocacy, to tens of thousands of clients in Brooklyn every year. We deeply appreciate the Council’s ongoing efforts to reform our criminal justice system.  While all of the issues addressed by the legislation and the resolution under consideration today impact BDS’ clients, I will focus my testimony on civil forfeiture and police accountability. In short, we support Int. No. 83, Pro. Int. No. 728A, Int. No. 1000 and Reso. No. 1181, and encourage the Council to go further in ensuring that law enforcement does not infringe upon the rights of New Yorkers.

 

CIVIL FORFEITURE

There is a common misconception that all property seized and forfeited by law enforcement belongs to convicted criminals and that it has been used in, or gained through, commission of a crime. The reality is that this process begins at arrest, at a time when the owner is presumed innocent, and these funds and assets are most often retained without court oversight and without due process. BDS’ Civil Justice Practice works case by case to advocate for justice, but the policing-for-profit industry warrants systemic reform. Even clients who can prove that their property was not used for illegal activity often settle—that is, they pay the police to get their own stuff back—due to the coercive dynamics and burdensome procedures described in detail below. It is very difficult to advise a client, even one with a good case, not to pay for an expeditious and guaranteed return of their property. Because settlements are only approved if the client signs a “hold harmless” agreement, preventing any civil lawsuit against the City for abuse of civil forfeiture, there are no realistic avenues to challenge the underlying practices in court. For our clients, the cost is simply too high. Fighting to protect their rights means suffering the unrecoverable loss of time, wages, missed medical appointments, stable housing and more. The reality is that only clients who cannot afford to settle end up pursuing their right to due process and pushing back against the City’s fundamentally unfair policies.

Background

The New York Police Department and local District Attorneys can effectively take New Yorkers’ cash and property at will and can hold it for months on end, even years with very little accountability. These seizures typically occur at arrest, and then the cash or property can be forfeited permanently through criminal forfeiture, in which prosecutors indict the property used or derived from a crime along with the defendant as part of a criminal prosecution. Civil forfeiture is a process in which the property is indicted alone. Importantly, criminal forfeiture is subject to a court order. It can only occur in cases resulting in criminal convictions, and defendants are constitutionally entitled to an attorney, whereas the vast majority of civil forfeitures never even reach a public hearing, and can occur without a conviction. In the rare civil forfeiture cases that receive a hearing, attorneys are not provided to property owners, though our Civil Justice Practice represents BDS clients throughout the process. The differences in these procedures are critical, as is the absence of meaningful oversight or accountability in law enforcement practices.

Every year, the City of New York collects millions of dollars in revenue from civil forfeiture initiated by the New York Police Department (NYPD).[1] Items that are most commonly seized by the NYPD include cash, motor vehicles, computers, and smartphones. This is doubtlessly a very lucrative source of income for the NYPD and New York City. However, this procedure encourages “policing-for-profit,” reinforces community distrust of the police, and disproportionally harms impoverished communities and people of color.

According to an analysis of FBI data by the Washington Post, “law enforcement officers took more stuff that burglars did [in 2014].”[2]

Forfeiture actions are regulated under New York State’s Civil Practice Law and Rules §1311.[3]  They were allegedly designed to “take the profit out of crime”[4] and cripple large-scale criminal enterprises by allowing the government to recover property which constitutes the “proceeds of a crime” or that is an “instrumentality of a crime.” Regardless of the underlying purpose, the statute explicitly provides authority for civil forfeiture actions to be commenced against criminal defendants as well as those not charged with a crime. As a result, the NYPD often seeks forfeiture even where the District Attorney has declined to bring charges. In the rare cases challenging a forfeiture action—often, those cases in which an individual cannot afford to pay to get their own property back—New Yorkers are further hampered by the statute: Rather than requiring proof beyond a reasonable doubt, as is the case in criminal court, law enforcement must only meet the much lower ‘preponderance of the evidence’ standard to acquire property.

Seizure and Forfeiture in Practice

As soon as property has been seized, the NYPD civil forfeiture unit is supposed to inform the property owner that they have filed or soon will file a forfeiture action in state supreme court, though this often does not occur. Instead, property owners are given a voucher and, for car seizures, a Krimstock form, with no explanation of what either mean. Months later, they might get a settlement offer in the mail. Either way, the NYPD typically does not wait for a criminal conviction relating to any underlying charges. One repercussion of this practice is that criminal defendants are often unable to testify in the related civil forfeiture proceeding, as any testimony can be used against them in a criminal proceeding.  A refusal to testify can lead to a negative inference against the defendant property owner. This puts a defendant in the dangerous position of either exercising their right to remain silent and potentially losing their property or testifying in the civil case and allowing the District Attorney to use their statements against them in the criminal case.

It is important to note that innocence is no guarantee that property will be returned to its owner.  An organization that relies on forfeiture proceeds has little incentive to return property for free.  We often see cases that result in dismissals of all criminal charges or in a mere non-criminal violation where the NYPD still pursues forfeiture unless the client will pay a settlement fee of anywhere between $500 and $3000.  In addition, many clients do not respond to a civil forfeiture summons or do not understand that they must affirmatively demand release of the property. In such scenarios, the property will be marked abandoned and, if it is not cash, liquidated.

Where forfeiture is not related to an ongoing criminal matter, it can be extremely difficult for the property owner to obtain information about why their property is being held or what accusations are being made due to the lack of discovery from the criminal case. Instead, they are forced to pay and settle the case or wait until the civil forfeiture lawsuit has been commenced to be informed of why the NYPD has been retaining their property. Many do not have the option to wait, such as those who need their car or laptop for work or those who need their cash to pay rent. Even where they are offering settlement, the NYPD is under no obligation to release information about the underlying allegations, their evidence, or the reasons for seeking forfeiture. This lack of basic transparency can make it challenging for an attorney to advise clients in these situations and extremely difficult for an innocent owner to decide what to do.  In practice, most defendants, even those claiming innocence, will agree to pay whatever they can afford if a settlement is offered.

Lack of Oversight & Due Process

In January of 2015, BDS submitted a Freedom of Information Law request to the NYPD seeking data on civil forfeiture proceedings against cars. The response, while incomplete, revealed that 2,404 cars were seized under civil forfeiture in 2014 and only 15 such seizures were subject to so-called Krimstock Hearings. These hearings, held by Office of Administrative Trials and Hearings, are New Yorkers’ only opportunity for independent review of car seizures, and all owners are entitled to them. Yet few can actually exercise the right in this way for the aforementioned reasons: statements can be used against them in their criminal cases, and many cannot wait so long. While our FOIL only pertained to car seizures, we believe that a similar lack of oversight and due process afflicts the entire system of civil forfeiture.

Experiences of BDS Clients

Example #1 – Property with no nexus to alleged offense

The first example involves the seizure of a car that was not in use, and not even in our client’s possession, at the time of arrest. Our client was a passenger in a friend’s car when it was stopped because an officer alleged the driver had two earpieces in his ears while driving. The stop resulted in a search and our client was charged with sale and possession of marijuana. That car was seized during the arrest, but the property collection did not stop there.

At the time of arrest, the NYPD asked if our client owned a car. They took our client’s keys and wallet. They drove nearly four miles from the site of arrest to our client’s house, knocked on the door, told his younger brother that they had received a phone call that the car was blocking the driveway and seized and held that car, as well. At the station, our client was told that if he did not cooperate with their investigation of the drugs found in the first car, he would not get his own car back.

Due process gave our client the right to a “prompt” hearing, called a Krimstock hearing, for the car’s return during the pendency of the criminal case and any civil case. Indeed, shortly after his arrest, the NYPD informed our client of this right to a Krimstock hearing and explained they would settle the case for $1,000 and a release from liability. Urgently needing his car to commute to and from his job on Long Island but unable to afford the steep settlement fee, our client requested the hearing. However, his hearing was postponed indefinitely when the Assistant District Attorney (ADA) in the criminal case secured an ex parte retention order for the vehicle, effectively ensuring our client could not take advantage of his due process rights to a prompt post-deprivation hearing.

Six weeks after the arrest, the ADA released the car, demonstrating that, in fact, they did not need the car for evidence, and our client was once again permitted to pursue its retrieval with the NYPD. Yet despite the absence of a criminal case related to the car, the NYPD continued its civil forfeiture case. The NYPD was unwilling to provide any basis for their retention of his car or explain how this car was connected to an arrest that occurred in another car miles away. Our client could have requested a new Krimstock hearing, waited up to 20 days for it to be scheduled, and even if it were successful, he would still be facing a civil forfeiture case in state court that could take months to resolve. In the end, he paid a $500 settlement to get his car back.

Example #2 – The Non-Criminal Property Owner

Even when the NYPD and prosecutors agree that no criminal activity occurred and the property should be returned, our clients face the daunting challenge of navigating a system designed to retain property, not to return it.

If criminal charges are dismissed and the DA does not need the property, the owner must still request and receive a written release from the DA before the NYPD will release it. The process of requesting and obtaining this release can take weeks and requires property owners to present themselves in person at criminal court, request the release, and wait to be notified. The assigned DA does not prioritize a case that has ended and has no motivation to assist in the matter. Once the release is acquired, the property owner then has to navigate the NYPD’s own procedures.

We were able to help one of our clients get his car back without paying a settlement fee, but even with an acknowledgment from the DA and NYPD that he should get his car it took more than two weeks to physically acquire the car.

This client was extremely anxious to get his car back, as he relied on it on to drive a sick relative to regular doctors’ appointments, and because of this obligation he had been paying to rent a car while fighting to get back his own. In the end, the client had spent nearly as much on rental cars as it cost him to buy his car in the first place ($1,000). Despite his frustration with the process, the immense gratitude he had for our office was heartbreaking knowing that he was thanking us for the return of his own property that was taken without justification and returned without compensation.

Example #3 – Lost Car

The lack of transparency and accountability in the civil forfeiture process allows the NYPD to lose our clients’ cars with little recourse.  One client’s car was seized at arrest, and officers handed him a voucher with a number on it that was supposed to correspond to his car and potential forfeiture case. The client later took a plea requiring him to install a device on that same car. When he attempted to get his car back in order to comply with his plea, using the voucher number provided to him, he discovered that his voucher number corresponded to a different car and a different name. Both the District Attorney’s office and the NYPD have searched their databases for his car, only to find nothing. The client was then violated for not complying with the requirement to install a device on a car he did not have. He faced jail time for this violation, until several attorneys from BDS explained the situation to the criminal court judge.

The car remains unaccounted for, and neither the NYPD nor the DA’s office has offered any recourse for our client.

Example #4 – Cash Forfeiture

These difficulties and delays are not unique to vehicle forfeiture. We see similar problems with cash forfeiture as well.

For example, a client was arrested with a co-defendant for possession of marijuana. At the time of arrest our client had her phone and about $500 cash on her; the co-defendant had no money. When our client was first brought to the precinct, she saw that the phone and cash were vouchered under her name. After our client was offered and accepted an Adjournment in Contemplation of Dismissal (ACD), she began the process of retrieving her phone and cash, only to find that the cash was suddenly vouchered under her co-defendant’s name, whose case was still open.  Two months later, the ADA on her case had yet to respond to requests to release her phone. As for the cash, because it was no longer in her name she faced an uphill battle to get it returned. An NYPD Sergeant explained that our client had to secure another ADA release in her co-defendant’s name, get a notarized letter from the co-defendant relinquishing any claim to the cash, and then make a demand for the cash at the NYPD property clerk window. If she were successful in all this the NYPD would begin an investigation to determine if the cash can be released to her. More than three months later, the client finally was able to get her cash back, but not her phone.

This example illustrates what can happen outside of formal civil forfeiture proceedings. If our client had been unsuccessful in jumping through all these hoops and could not make a claim for the property within 120 days of the termination of her criminal proceeding, it would have been forfeited automatically without the city needing to file for forfeiture. A very real and perverse incentive thus exists to delay the return of property in such cases.

Civil Forfeiture as Extortion of the Poor

Finally, although the civil forfeiture process begins with initial contact with the criminal justice system, there is no right to counsel in any related civil proceeding.  The public defenders who assist in protecting a client’s due process rights and ensuring they are treated as innocent until proven guilty do not have the same mandate with respect to a client’s property. BDS is one of only a few comprehensive indigent legal service providers in the State.

The forfeiture statute is being used as just another threat the NYPD can hold over the heads of impoverished communities and the standard practice of extorting money from even innocent owners is clearly outside of the scope of what the original drafters intended.

Int. 1000 & the Need for Transparency

While fundamental reforms or abolishment of civil forfeiture must be our ultimate goal, establishing transparency in the practice would be an important step forward. With public reporting on the value of cash and property seized, the results of such seizures, and the precincts who are responsible, this legislation shines a spotlight on a notorious and opaque practice. BDS thanks Councilmember Ritchie Torres for his leadership on this issue. We strongly support the bill and urge its swift enactment.

We also hope the City of New York will go further in protecting the rights of New Yorkers. Eleven states have already passed reforms requiring a criminal conviction as a precondition for most or all forfeiture cases.[5] Most recently, California passed legislation in August requiring a criminal conviction precede any seizure worth less than $40,000.[6]  Both New York City and State must finally recognize civil forfeiture as extortion of the poor – an extrajudicial punishment that can and does destroy lives. The Governor and the Legislature should either abolish the practice or follow the lead of other states and prohibit the vast majority of civil forfeitures until and unless a criminal conviction is secured against the property owner. In the meantime, the New York Police Department and local District Attorneys should end the seizure and withholding of cash and property of New Yorkers who are either found or presumed innocent. This change is a prerequisite to improving the legitimacy of police and prosecutors in heavily-policed neighborhoods.

CPR AND AED CERTIFCATION FOR POLICE OFFICERS

BDS supports Int. No. 83, which would require the NYPD to report on the number of department employees certified in cardiopulmonary resuscitation and use of automated external defibrillators. We also support Res. No. 1181, which calls upon the New York State Legislature to pass, and the Governor to sign, Briana’s Law, requiring all police officers to be retrained in cardiopulmonary resuscitation every two years.

PUBLICATION OF THE NYPD PATROL GUIDE

BDS supports Int. No. 728-A, which would require the publication of the NYPD patrol guide on the Department’s website. It is wholly unacceptable that the meager accountability standards that exist for police officers would be kept secret for those they are sworn to protect.

Thank you for considering my comments. BDS looks forward to continuing to work with the Council to make our criminal justice system more fair, effective and humane.

 

[1] NOVEMBER 2015 FINANCIAL PLAN – Revenue 2016 -2019 (Office of Mgmt. & Budget 2015).

[2] https://www.washingtonpost.com/news/wonk/wp/2015/11/23/cops-took-more-stuff-from-people-than-burglars-did-last-year/

[3] N.Y. Civil Practice Law and Rules §1311 (McKinney 2010)

[4] Kelly, James F. (2012) “CPLR 13-A: A District Attorney May Attach the Personal Assets of a Defendant, Prior to Conviction, Without Establishing that the Attached Assets Are the Proceeds of a Crime,” St. John’s Law Review: Vol. 61: Iss. 1, Article 11.

[5] http://endforfeiture.com/institute-for-justice-applauds-nebraskas-sweeping-forfeiture-reforms/

[6] http://www.latimes.com/politics/la-pol-sac-deal-reached-police-seizures-20160804-snap-story.html

ANDREA NIEVES TESTIFIES IN SUPPORT OF COUNCIL BILL REQUIRING DOC TO PROVIDE FREE FEMININE HYGIENE PRODUCTS IN CITY JAILS

TESTIMONY OF: 

Andrea Nieves – Attorney

BROOKLYN DEFENDER SERVICES

Presented before

The New York City Council Committee on Women’s Issues

on

Introductions 1122-2016, 1123-2016, 1128-2016 and

Resolution 1012-2016

Related to access to feminine hygiene products 

June 2, 2016

My name is Andrea Nieves. I am an attorney at Brooklyn Defender Services (BDS). BDS provides innovative, multi-disciplinary, and client-centered criminal, family, and immigration defense, as well as civil legal services, social work support and advocacy, for over 40,000 clients in Brooklyn every year. I thank the City Council Committee on Women’s Issues and, in particular, Chair Laurie Cumbo and Speaker Melissa Mark-Viverito for the opportunity to testify today about the dire need for the City to provide quality feminine hygiene products to women in City jails.

Over the past 20 years, BDS has represented thousands of women detained on Rikers Island. Our female clients spend their time at Rikers at the Rose M. Singer Center, often referred to as “Rosie’s.” When compared to their male counterparts, our incarcerated female clients are:

  • Much more likely to have histories of trauma and to be survivors of sexual and physical abuse;
  • More likely to suffer from a mental illness (recently more than 70%) and chronic medical conditions;
  • More likely to be unemployed or underemployed;
  • Often the primary caretakers of children while in the community; and
  • More likely to experience sexual abuse and trauma while incarcerated.

The vast majority of the women at Rosie’s should not be in jail; they are there simply because they are too poor to pay bail.

Notably, the bulk of the top charges that bring women into contact with the criminal justice system are related to histories of drug and alcohol addiction – a clear indication that the War on Drugs continues to wreak havoc in the lives of the clients, families, and communities we serve. In choosing to detain these women, the City is assuming responsibility for providing continuous quality care, including hygiene products and health care.

BDS strongly supports the three bills and one resolution before the Committee today. Access to feminine hygiene products is critical for women’s health. Doctors recommend changing pads or tampons every three to four hours to prevent bacterial and fungal infections that may lead to serious health problems. We believe that all women and girls should have access to feminine hygiene products and are grateful to the City Council for proposing legislation to ensure that schools, shelters and jails across the City provide these items to women in need. These bills are critical to demonstrating a public consensus about the importance of access to feminine hygiene products and in bringing about a cultural shift in how we talk about and address women’s issues.

While many prisons and jails across the country do not provide any free hygiene products to detained people, including feminine hygiene products, DOC does provide free sanitary napkins to women. However, women are only provided a small number of the free napkins, a supply frequently insufficient for women with heavier flows. According to a recent survey by the Correctional Association, 54 percent of respondents in New York prisons said they did not get enough sanitary napkins each month. This is consistent with the experience of our attorneys and social workers supporting our clients detained at Rikers. Our clients tell us that they are generally given only 12 sanitary napkins at a time. Women without a sufficient supply must then request additional napkins from guards, who often use the request as a way to control women and assert their authority over her. Our clients tell us that they have to beg officers for more free pads only to be treated with disrespect that make them feel ashamed. Furthermore, the free napkins are of very poor quality and most of our clients will go to great lengths to purchase name brand napkins from the Commissary. Our clients report that the free napkins are not properly absorbent and thus easily lead to staining of their uniforms.

Ms. R’s story is a perfect example of how Rikers current policy on feminine hygiene products affects poor New Yorkers.

Ms. R, a 24-year-old BDS client, spent nine months detained on Rikers.

She asked her BDS social worker not to visit her while she was menstruating because she was worried about leaking through her uniform and having to walk the halls of the jail with a bloodstain. Ms. R had to choose between the shame of leaking blood while menstruating and meeting with her legal team. Ms. R. comes from a low-income family and worked overtime in the jail to pay for her basic needs including deodorant, soap and sanitary napkins. She shared that she did not have enough sanitary napkins and she would try to wear the same napkin for as long as possible to ration the supply she was able to purchase from the Commissary because the free pads were of such low quality.

The current policy of providing women with unusable hygiene products in insufficient quantities after repeated requests does not meet the spirit of the bill as proposed. No woman should be denied her dignity or humanity because of her menstrual cycle, including when she is in school, living in a shelter or incarcerated. Today’s hearing, along with the passage of Int. 1122-2016, are important first steps in codifying a right for women incarcerated in City jails to access feminine hygiene products.

We are very grateful for Council’s important work on this matter. However, legislation alone will not be enough. We plan to continue direct advocacy with DOC to ensure that all women receive as many sanitary napkins as they need, when they need them, without harassment and abuse from correctional officers. We hope that the City Council and our community partners here today will work together to ensure that DOC provides functional sanitary napkins, as the current offerings are of such poor quality that our clients report they are often unusable, except as shower slippers or as adhesives to hang photos of their children on the wall. In the future, we would like to see DOC provide female inmates with tampons as well as sanitary napkins, which allow greater freedom of movement and comfort.

Thank you for your consideration of my comments. We are grateful to the Council for bringing to light the issues that low-income women face in obtaining feminine hygiene products in the City’s schools, shelters and jails. Please do not hesitate to reach out to me with any questions about these or other issues at (718) 254-0700 (ext. 387) or anieves@bds.org.

 

BDS’ RILEY DOYLE EVANS TESTIFIES BEFORE NYC COUNCIL ON CORRECTIONAL HEALTHCARE

TESTIMONY OF: 

Riley Doyle Evans – Jail Services Coordinator

BROOKLYN DEFENDER SERVICES

Presented Before 

The New York City Council Committees on Fire and Criminal Justice Services, Health, and Mental Health, Developmental Disability, Alcoholism, Substance Abuse and Disability Services

In relation to Correctional Healthcare

May 26, 2016

                My name is Riley Doyle Evans and I am the Jail Services Coordinator for Brooklyn Defender Services. BDS provides legal services to tens of thousands of people in Brooklyn each year in criminal, family and civil court proceedings.  As part of our comprehensive mission, BDS provides dedicated supportive services and advocacy to our clients incarcerated in city jails. BDS deeply appreciates the Council’s ongoing efforts to examine and take on issues of our criminal justice system. I especially want to recognize the work of Council Members on the Health and Fire and Criminal Justice Services Committees to improve conditions for people in our city jails.  Thank you for the opportunity to share our perspective.

In New York City today, like elsewhere in the country, our jail system has become the city’s largest mental health service provider. In fact, it is one of the largest mental health providers in the nation.  We agree that adequate, humane medical and mental healthcare delivery in our jail system is of paramount importance.  However, we emphasize that high-needs individuals who pass through our jail system cannot get adequate care in a correctional setting. These individuals should be diverted from the criminal justice system long before being sent to Rikers Island.

BDS attorneys spend their days and nights in arraignments vociferously opposing bail requests from prosecutors who send clients living with serious illness to jail for crimes of survival like jumping a turnstile or stealing toothpaste, or behaviors that likely result from mental illness.  These individuals should never have been arrested, but even after the trauma of arrest, they could be diverted at arraignments, and certainly should not be incarcerated pre-trial on bail.  There is no indication that public safety is served by incarcerating these individuals during the pendency of their case.  Moreover, these cases are indicative of serious shortcomings in public health, housing and other service provision systems in the city. Pre-trial incarceration only compounds this issue. When people are unnecessarily incarcerated, the interruption in medical care, mental health treatment, housing and other essential services they endure have devastating consequences and pose a serious drain on scarce resources in the community.

Although BDS expends significant resources advocating for our clients’ access to medical and mental healthcare while incarcerated, we acknowledge that jail is an inherently pathogenic institution – people who are sick will be made sicker, and those who enter healthy may leave bearing the scars of trauma, neglect, abuse, and mental illness, which they will carry for life.

Intro. No. 852-A

                BDS supports this legislation to bolster access to care for people in city jails, and offers recommendations for amendments.  Sick call represents the most important avenue through which people request medical, dental and mental health treatment in the jails and must be improved.  Presently, sick call involves people signing up on a piece of paper in their housing unit, or informing a correction officer that they wish to sign up.  Correctional staff are responsible for bringing the individuals who have signed up to the clinic to be seen for treatment.  This system has many shortcomings, principally that Corrections Officers are the gatekeepers to medical care and medical staff are never provided the complete list of people who have requested care. Worse, many of our clients have been denied the opportunity even to sign up for sick call. Under the present system, denying access to medical treatment is one of the tools used by corrections officers to punish people in the jails.  Even if someone is able to sign up for sick call, corrections staff can refuse to escort that person to the clinic and medical staff will never know about that person’s condition.

BDS supports Intro. 852-A, and encourages the Council to amend the language to go further in facilitating access to care in the following ways:

  • Mandate H+H to facilitate sick call. As the provider of healthcare services, Health and Hospitals should have sole responsibility for sick call. It is imperative that healthcare staff know who is requesting medical treatment from the beginning in order to help avoid lapses in treatment with tragic consequences.  H+H management of the process will allow more efficient scheduling based on medical need and avoid unnecessarily long wait times.  While DOC staff must be accountable for escorting people to the clinic, removing DOC staff from the actual sick call process will end the practice of denying care as a means of punishment.  We note that if adjustments are made to sick call procedures, it is crucial that any triage that occurs outside of a clinic is conducted in a confidential setting.
  • Specialty Care Timelines: We support the provision that specialty care be delivered in a timely fashion.  We urge the Council to be even more specific in its delineation of timely treatment to reflect the orders of the treating provider – for example “…shall be notified of, escorted and transported to such care within the timeframe ordered by a medical provider.” Specialty care may be routine, urgent or emergent, and in each instance, different definitions of “timely” apply; what is crucial is that the treatment is completed within the timeframes ordered by the provider, as presently reflected in the Board of Correction Healthcare Minimum Standards. In general, Council legislation that allows DOC or HHC complete discretion might not have its intended effect, as the agency will remain legally unaccountable.
  • Escorts: Presently, many jails operate on an “escort only” basis, which provides that any time a person leaves the housing unit for any reason, they must be escorted by a correction officer. Reasons may include family or legal visits, law library visits, educational or other programming, and medical care, among other services.  This places a significant strain on escort officers who may also be inappropriately assigned to additional duties.  We support the Council’s effort to ensure that escorts are available for medical visits.  We believe it may be beneficial to utilize staff more efficiently and create specific teams of officers assigned as “medical escorts” who are supervised by an independent captain. Such a change would ensure escorts are available to facilitate prompt access to medical care and return from the clinic after treatment, and avoid conflicting responsibilities.
  • Staffing: We support the Council’s effort to ensure adequate medical staff are present in city jails.  We recommend an amendment to the language of this bill to clarify that staffing levels among medical staff should be determined and guaranteed by Health and Hospitals and not the Department of Correction.  The bill as written suggests that DOC would make this determination, which would alter current practice in a detrimental way.

Intro No. 1013

BDS supports the Council’s effort to increase the availability of discharge planning services.  We believe discharge planning should be made available to all people in the jail system.  As mentioned above, we believe many people in our jails should be offered services before their arrest, arraignment, and as an alternative to incarceration.  Services offered should be voluntary and not mandated as a condition of release or housing. Additionally, Health and Hospitals already plays an important role in discharge planning for many individuals in the jail system and their expertise should guide discharge planning for all people with medical and mental health conditions who pass through our jail system.  Furthermore, we would welcome enhanced discharge services for individuals released from court, particularly those people with serious medical and mental health needs.

Intro No. 1014

Brooklyn Defender Services supports the Council’s effort to document the shortcomings of our current approach to responding to mental illness through recidivism data. It is important to acknowledge, however, that regardless of the quality discharge planning, all available evidence demonstrates that incarceration itself increases the likelihood that people will be arrested in the future.  As noted above, incarceration is also likely to trigger or exacerbate mental illness.  Jails are fundamentally inappropriate places to deliver mental health treatment, and the compounding traumas that people experience as a result of incarceration cannot be undone through discharge planning.  The primary driver of reform must be made to divert people with mental illness away from the criminal justice system before they are even arrested.

Intro No. 1144

Brooklyn Defender Services supports the requirement that all staff working in city jails receive training in trauma-informed care.  We believe the Council should specify a minimum number of hours of training for all staff to ensure that this training is meaningful and effective.  Furthermore, we believe the Council should require reporting regarding the implementation and utilization of training, rather than leaving it to the Department to ensure compliance.

T2015-3243

                Brooklyn Defender Services supports the efforts of the council to improve practices to document medical and mental health conditions of people who are arrested.  We believe continuity of care for this population is essential.  However, we believe certain elements of the introduction as drafted may not be effective. Alternatively, we support the expansion of Health and Hospitals’ role in pre-arraignment screening to all shifts in all boroughs.  In Manhattan, H+H medical practitioners in pre-arraignment screening are able to document injuries, evaluate mental health symptoms, facilitate hospitalizations if necessary, and help ensure continuity of care for individuals with serious needs who enter the jail system.  Additionally, because the providers are medical professionals with access to an Electronic Medical Record, the documentation and treatment they provide will be confidential.  Some concerns about the proposal are listed below:

  • Documenting Arrest Injuries: The proposed language suggests that NYPD officers will be responsible for documenting injuries suffered during arrest. While well intended, this provision seems unrealistic, and may ultimately serve as a tool for NYPD to claim that injuries inflicted during arrest were pre-existing.  If a person is injured during arrest, they should receive treatment at a hospital from a medical professional who will document the injuries in a confidential medical record.  In most cases, the treating hospital will be part of the Health and Hospitals system, thereby facilitating a relatively straightforward transfer of records to H+H Correctional Health Services (CHS).
  • Documenting Mental Health Symptoms: The bill as written suggests that NYPD officers will speculate about the mental health symptoms exhibited during an arrest or in custody. It is inappropriate for a lay-person such as a police officer to speculate about a person’s condition and expect that information to inform care delivered going forward. If a person is exhibiting symptoms of mental illness, they should be offered voluntary treatment by a mental health professional in a clinical setting who will document the symptoms and, if appropriate, provide a diagnosis and treatment plan in a confidential health record. Again, this record may be procured by CHS through H+H or a HIPPA release from the patient.
  • Transmission of Health Information: The bill suggests that health information about people in custody should be transmitted to the Department of Health and Mental Health. The bill should be amended to reflect changes in the healthcare services provider in DOC facilities.  Health and Hospitals Correctional Health Services now delivers care in NYC jails, not DOHMH. Furthermore, the bill suggests that NYPD will transmit healthcare information about people in custody.  This raises concerns about confidentiality of medical information.  NYPD should not be the custodian of confidential health information; diagnoses and treatment should be delivered by medical professionals who then generate confidential records which can be procured through H+H medical records or HIPPA release by the patient.

Resolution No. 461

Brooklyn Defender Services supports the resolution calling for the Federal Government to continue Medicaid coverage for individuals while incarcerated in New York City jails.  In addition to the obvious financial implications of such a change, continuing Medicaid coverage for people in city jails will facilitate safer release for people returning to the community who may presently experience lapses in coverage.  In addition, ongoing Medicaid coverage will obviate a cumbersome and expensive bureaucratic process people currently endure upon release from jail. Finally, Medicaid reimbursement for treatment received in the jails will likely improve quality of care through accountability mechanisms utilized in community hospitals, but presently absent in the jail system.

Thank you for your consideration of my comments. Please do not hesitate to reach out to me with any questions about these or other issues at (718) 254-0700 (ext. 225) or rdevans@bds.org.

TESTIMONY AT NY CITY COUNCIL COMMITTEE ON IMMIGRATION HEARING ON RESOLUTION 928A-2015

TESTIMONY OF:

Nyasa Hickey – Immigration Attorney

BROOKLYN DEFENDER SERVICES

Presented before

The New York City Council Committee on Immigration Hearing

on Resolution 928A-2015

April 5, 2016

Introduction

My name is Nyasa Hickey. I am a practicing immigration attorney at Brooklyn Defender Services (BDS). BDS provides innovative, multi-disciplinary, and client-centered criminal, family, and immigration defense, as well as civil legal services, social work support and advocacy, for over 40,000 clients in Brooklyn every year. I thank the City Council Committee on Immigration for the opportunity to testify today about BDS’s support for Resolution 928A-2015 and the impact that Deferred Action for Childhood Arrivals (DACA) program and the new Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program would have on the communities that BDS serves.

United States v. Texas

It is critical that the United States Supreme Court issue a decision in United States v. Texas that overturns the Fifth Circuit’s ruling in Texas v. United States and upholds the implementation of President Obama’s expanded DACA and DAPA programs. Not only will this expand the benefits and protections of the existing DACA program to millions more immigrants nationwide, it will set a precedent encouraging the continuation of this program until comprehensive immigration reform occurs. BDS is deeply concerned about the hundreds of young New Yorkers that we assisted in requesting DACA relief in the original program who, by applying for DACA, exposed themselves and their families to the Department of Homeland Security for future deportation if subsequent administrations choose to terminate the DACA program and order ICE to roundup and deport former DACA recipients.

We ask the Committee on Immigration to pass Resolution 928A-2015 urging the U.S. Supreme Court to uphold the implementation of expanded DACA and DAPA. New York City and the Council have already demonstrated their deep support for President Obama’s programs by creating and funding Action NYC, a critical new initiative that is already facilitating the City’s response to DACA/DAPA by connecting New Yorkers to free or low-cost immigration legal services. We hope that when a favorable decision comes down, the City Council will work with the Mayor’s Office of Immigrant Affairs and Action NYC to ensure that legal services providers are funded to assist with complex DACA/DAPA requests, not just the simple ones.

BDS’s Provision of DACA/DAPA Services

Since 2009, BDS has counseled, advised or represented more than 6,500 immigrant clients. In 2015 alone, we handled more than 1,500 immigration matters across a full spectrum of services. BDS’ vibrant Immigration Practice is composed of 17 full-time immigration attorneys, five paralegals[1], and four legal assistants. We are a Board of Immigration Appeals-recognized legal service provider. We defend detained clients facing deportation, clients identified through our criminal and family defense dockets, and clients referred from our community partners or who connected with us through community outreach clinics.

BDS recently completed a contract with the Division of Youth and Community Development (DYCD) to provide DACA services.[2] Through that contract we established ourselves as a well-known DACA provider in Brooklyn, and we continue to receive DACA and other immigration referrals from community-based organizations and literacy providers, as well as from former DACA clients referring their friends and family members to us. While many New Yorkers with “simple” expanded DACA/DAPA cases can be helped by community based organizations and programs like Action NYC, we stand ready to help those with cases made more complicated by interactions with the criminal justice system and/or immigration enforcement.

Indeed, BDS and other public defender offices like ours are in a unique position to provide complex immigration legal services for clients who may not otherwise seek immigration assistance but come to us by way of the criminal and family court systems.

We estimate that at least 1,000 and up to 4,000 of the 40,000 clients that BDS represents every year could be eligible for expanded DACA or DAPA. We also represent a significant number of U.S. born children of immigrant parents who we are in a unique place to identify and advise about DAPA.

To give you an example, I work in BDS’s Padilla practice, meaning that I work with criminal defense lawyers to advise BDS clients facing criminal charges on the ramifications of any plea or conviction on their immigration status.[3] Often when I screen clients through our Padilla practice I am able to identify family members of our clients who are eligible for DACA/expanded DACA/DAPA.  Consequently, even if the clients who we represent in our criminal defense/family defense cases are ineligible for DACA/DAPA themselves (either because of a pending case, past criminal history or because they already have status), I am able to flag for clients that their family members are eligible and may call our office for an intake.  Other times, once I start speaking with the client about his or her immigration status, the client will ask if they can send their family members to us for help, too. Thus, through our robust Padilla representation, BDS attorneys earn the trust of our clients who may then actually confide in us to help their family members come out of the shadows and apply for DACA/DAPA.

Funding

The City should provide funding for BDS and other defender offices to do screenings of all of our clients for DACA/DAPA eligibility–and through those screenings we may also obtain access to our clients’ family members. Right now we only have the capacity to do intakes of those clients who are facing potential immigration consequences from their family/criminal defense case. If we had more funding we could set up a “refer all” policy at BDS to refer all undocumented clients (as well as LPR or USC clients who have undocumented family members) to BDS attorneys for a DAPA/DACA screening of themselves and their families.

Our office is perfectly situated to assist our clients in-house with expanded DACA and DAPA requests that are more complicated than cases that will be handled by other City providers. Unfortunately, our clients’ justice involvement complicates otherwise straightforward DACA, expanded DACA or DAPA requests. Also, DAPA, which is a form of relief for parents of U.S. citizens, are older than the young people formerly eligible for original DACA, and consequently many have backgrounds that involve criminal and family court issues. Smaller legal service providers do not have the resources or criminal law expertise and familiarity with family and criminal courts that public defender offices have that allow us to efficiently handle these cases in-house.

Conclusion

We look forward to working with the City to ensure that our clients with former or pending criminal justice-involvement are not left behind when these programs finally roll out so that all immigrant New Yorkers have access to the quality immigration legal services that define our City.

[1] One of our paralegals is fully accredited by the Board of Immigration Appeals (BIA). The other four paralegals on our Immigration Practice Team are partially accredited by the BIA.

[2] It is our understanding that future RFPs related to DACA/DAPA services will be made through the Mayor’s Office of Immigration Affairs and/or Action NYC.

[3] In 2010, the U.S. Supreme Court held in Padilla v. Kentucky that the Sixth Amendment requires defense counsel to provide affirmative, competent advice to a noncitizen defendant regarding the immigration consequences of a guilty plea. Absent such advice, a noncitizen may raise a claim of ineffective assistance of counsel. See Padilla v. Commonwealth of Kentucky, 559 U.S. 356 (2010).

TESTIMONY OF NYASA HICKEY AT NY CITY COUNCIL COMMITTEE ON IMMIGRATION BUDGET HEARING

TESTIMONY OF:

Nyasa Hickey – Immigration Attorney

BROOKLYN DEFENDER SERVICES

Presented before

The New York City Council Committee on Immigration

Budget Hearing on

March 28, 2016 

I. Introduction

My name is Nyasa Hickey. I am a practicing immigration attorney at Brooklyn Defender Services (BDS). BDS provides innovative, multi-disciplinary, and client-centered criminal, family, and immigration defense, as well as civil legal services, social work support and advocacy, for over 40,000 clients in Brooklyn every year. I thank the City Council Committee on Immigration for the opportunity to testify today about the important work that immigration legal service providers do for New York City’s diverse residents.

We cannot express enough how thankful we are to this City Council and this City for its visionary investment in legal service programs that have made New York the nation’s leader in promoting access to justice and opportunity for its immigrant communities.  BDS remains honored to work with this City Council to serve as a legal service provider under one of these programs—the New York Immigrant Family Unity Project (NYIFUP).  NYIFUP, as the nation’s first public defender system for detained immigrants facing deportation, promotes family unity and a more fair and just process for our immigrant New Yorkers.

My written testimony today will provide the Committee with updates about some of the innovative immigration legal work that City-funded service providers have accomplished in the last year. I will also identify additional ways that City Council, service providers, and the community can work together to better serve New York’s immigrant communities. Most critically, this includes continuing to fund organizations like BDS and other members of immigrant service provider coalitions to provide complex immigration services.

II. Current Immigration Legal Services Landscape in New York City

New York City is the nation’s leader in supporting immigrant communities, in large part because of the advocacy and funding provided by the City Council.  The Council currently funds NYIFUP, which is among its most ground-breaking immigrant legal service initiatives and is described in greater detail below.  The Council has also funded the Immigrant Children Advocates Relief Effort (ICARE), in partnership with private funders, to assist unaccompanied children in removal proceedings and on the priority dockets of the New York immigration court. A third City initiative, ActionNYC, is funded through the Executive Budget and in partnership with the City Council, and is the nation’s largest investment by a municipality to prepare for executive action. Action NYC has created a city-wide system rooted in immigrant community organizations to provide quality immigration-related information and affirmative immigration benefit support—at least for simple applications such as DACA, TPS, I-130 petitions, straightforward I-485 adjustment of status applications, greencard renewals, FOIAs, and work authorization applications—to thousands of New Yorkers. Finally, our understanding is that the City’s Immigrant Opportunities Initiative (IOI) will remain an additional source of funding for the provision of immigration legal services, although current and prospective providers under the IOI await further clarification from the City as to when and how IOI funding will be allocated in coming years.

The need for all this funding has never been more acute. The years 2009 to 2016 have brought more immigration enforcement than this country has previously ever seen.  Nationally, the Department of Homeland Security (DHS) officials reported early this year that they intend to continue the raids, hoping to send a signal and prevent a repeat of the surge in illegal border crossings. Although the numbers dipped last spring, a new spike saw more than 10,000 children reach the border in October and November alone.   Immigrant families across the country and in New York City experienced widespread panic in the wake of DHS’s announcement.  Fear of detention led to children staying home from school and parents not reporting to work and contributed to distrust of all law enforcement.[1]  Although “surge”-related DHS arrests have not been confirmed yet in New York City, just over the past year we have seen a dramatic increase in the rates of home arrests where ICE apprehends New Yorkers at home, often in pre-dawn hours, sometimes with misleading pretenses to locate targeted individuals.[2] ICE has also arrested clients in the courts as well as in sensitive locations such as homeless shelters.[3] Long-time and new residents of our city alike are facing deportation in high numbers.

Furthermore, over the past several decades, the immigration detention and deportation laws have become increasingly intricate and complex.  These laws are extremely harsh, often mandating deportation and detention for individuals with the most minimal criminal records. It is extremely difficult, if not impossible, for immigrants and their families to navigate on their own in most deportation cases.  Not until New York City launched NYIFUP in 2013 was any city resident ensured the right to assigned counsel in her deportation defense if she could not afford one.

III. The need for additional funding for complex immigration cases

As described above, New York City’s current funding landscape for immigration legal services includes resources to protect the due process rights of detained immigrants in deportation proceedings (through NYIFUP) and non-detained unaccompanied minors and adults with children on the “surge” dockets at 26 Federal Plaza (though ICARE). It also includes (through Action NYC) resources to help thousands of immigrant New Yorkers to identify what options they may have to obtain lawful immigration status and to provide them with affirmative immigration application assistance for simple cases such as DACA, TPS, I-130 petitions, straightforward I-485 adjustment of status applications, greencard renewals, FOIAs, and work authorization applications.

There is a very noticeable gap in funding, however, for immigrant New Yorkers to access quality legal services for other, more complex immigration cases.

Action NYC educates undocumented communities about immigration options and provides navigators to assist with straightforward immigration applications. Everywhere they go, these navigators are finding immigrants with complex cases who need legal representation.

Action NYC is a great start, but with existing immigrant legal services programs at capacity, thousands lack the representation needed to retain or obtain lawful status given the complexity of their legal issues.

These more complex immigration cases that require competent counsel include but may not be limited to:

  • Affirmative benefits cases that routinely involve more substantial attorney or BIA-accredited representative work, such as Special Immigrant Juvenile cases; U visas, S visas, and T visas; VAWA self-petitions; I-485 adjustment of status applications that also require I-601 waivers (of unlawful presence or criminal inadmissibility bars) or I-212 waivers (for prior deportation/removal cases) or other waivers; and Asylum;
  • Non-detained removal defense cases (other than those on the “surge dockets” that may obtain counsel through ICARE);
  • Cases involving appeals to the Board of Immigration Appeals (BIA), the Administrative Appeals Office (AAO), or state or federal courts where necessary or appropriate, such as an appeal to a higher state court upon the denial of a family court guardianship petition, or a federal habeas petition or Petition for Review;
  • Immigrant workers’ rights cases; and
  • Other complex affirmative immigration benefits cases, including those that may otherwise be more straightforward applications but that present complications such as evidentiary issues or criminal histories.

The City should fill this gap by increasing funding for non-profit immigration legal service providers like BDS across the city to provide this immigration assistance in these complex cases.

We respectfully submit that, in doing so, the City should be mindful of the fact that complex immigration cases often take years and are resource-intensive. Ensuring continuity of quality representation means, ideally, funding multi-year contracts with experienced legal services providers and paying a case rate commensurate with the work involved.  This investment will pay off. Every deportation prevented or Green Card obtained means tens of thousands of dollars in wages, taxes, and federal benefits that will flow into and through our communities.[4]  These cases save lives, as people fleeing violence abroad, or vulnerable to exploitation here, are granted a safe harbor and a new beginning.

BDS is a proud member of LEAP, a diverse coalition of direct civil legal services providers.  LEAP members work collaboratively to increase the availability and quality of civil legal services for low-income persons in NYC, and view representation as a continuum, connecting people to benefits and services to maximize their long-term stability in addition to providing them the legal services assistance they need. BDS currently provides complex immigration services through our NYIFUP and Immigrant Youth and Communities Projects. More details about these projects and our criminal-immigration Padilla practice are located in the sections below.

IV. BDS Provision of Immigration Legal Services

Since 2009, BDS has counseled, advised or represented more than 6,500 immigrant clients. In 2015 alone, we handled more than 1,500 immigration matters across a full spectrum of services. BDS’ vibrant Immigration Practice is composed of 17 full-time immigration attorneys, five paralegals[5], and four legal assistants. We are a Board of Immigration Appeals-recognized legal service provider. We defend detained clients facing deportation, clients identified through our criminal and family defense dockets, and clients referred from our community partners or who connected with us through community outreach clinics. The following section outlines how BDS uses current funding to defend our clients and promote stability for immigrant communities.

a. New York Immigrant Family Unity Project

The New York Immigrant Family Unity Project (NYIFUP) is New York City’s groundbreaking, first-in-the nation program providing quality counsel to immigrant New Yorkers who are detained and facing deportation and separation from their families and communities. BDS is proud to be a NYIFUP provider, along with The Bronx Defenders (BXD) and The Legal Aid Society (LAS).

In its first three years, NYIFUP has shown remarkable success and served as a model for access to justice. The following numbers were provided to us from the Vera Institute of Justice based on a preliminary and ongoing analysis of NYIFUP.

Record of Success.

  • Outcomes: NYIFUP has obtained relief, termination, or administrative closure for 154 clients, who may now remain in the United States. NYIFUP attorneys have won approximately 70% of their trials.
  • Clients Released from Detention: Counting these 154 successful outcomes, NYIFUP has secured release from custody for 452 clients.  Thus, 31% of NYIFUP’s clients have been released from detention thus far and have been reunited with their families.
  • Ancillary Proceedings: NYIFUP has initiated 153 ancillary proceedings—proceedings in other courts or with USCIS that are critical to obtaining successful outcomes or release from detention in the deportation proceedings.
  • Voluntary Departures: NYIFUP has negotiated 102 voluntary departures so that individuals could avoid the onus and legal consequences of a deportation orders
  • Families Across the City: NYIFUP has represented clients living in 49 out of 51 City Council districts.

National Model.

  • Spurring Replication Across New York State: Inspired by New York City’s leadership, the New York State Assembly provided funding in FY 2015 for a small pilot program at the Batavia Immigration Court in upstate New York, which has shown great success reuniting detained immigrants with their families. In FY 2016, the State Assembly has doubled this funding, expanding the reach of NYIFUP pilot programs upstate.
  • Inspiring Efforts Across the Country: NYIFUP has been the subject of national press and inquiry from jurisdictions across the country. In 2015, a NYIFUP-inspired universal representation program opened its doors in New Jersey, and cities including San Francisco, Chicago, and Boston have convened formal “study groups” to issue reports on access to counsel and develop programs like NYIFUP in their jurisdictions.

We are proud that NYIFUP has accomplished so much in such a short time. For FY 2017—we are requesting—together with the other NYIFUP providers—additional resources to continue this ground-breaking program and ensure that it addresses the needs of this population of immigrants in ICE detention.

Continued High-Quality Legal Services

NYIFUP’s primary goal is to preserve the unity of families, but it also aims to keep New York City’s vibrant immigrant communities strong.  As documented by The Center for Popular Democracy,[6] keeping families together saves New York government and employers significant sums, offsetting much of the cost of representing each NYIFUP client.

NYIFUP teams, including experienced immigration attorneys, BIA-accredited representatives, and social workers, provide culturally competent representation for our clients in highly complex cases:

  • NYIFUP provides representation in immigration court at master calendar hearings, bond hearings, mental competency hearings, and merits hearings.
  • NYIFUP handles appeals at the Board of Immigration Appeals and federal circuit courts of appeals.
    • A NYIFUP case at the Second Circuit Court of Appeals, Lora vs. Shanahan, established for the first time our clients’ right to an individualized bond hearing after six months of detention, even for those who are subject to mandatory detention.[7]
  • NYIFUP provides representation in family court to obtain Special Findings Orders, which allow abused, neglected and abandoned children to file Special Immigrant Juvenile Status Petitions and become LPRs.
  • NYIFUP attorneys assist in criminal court to resolve open cases, and to obtain vacaturs or other post-conviction relief that allow New Yorkers to remain with their families.
  • NYIFUP attorneys assist in federal district court when collateral proceedings – such as habeas corpus petitions or requests for declaratory judgment – are necessary for their immigration cases.
  • NYIFUP social workers provide social work services to detainees to support and assist them to obtain appropriate programs related to psychological assistance, drug/alcohol addiction and job services.
  • NYIFUP has increased awareness of detention issues through work with other legal services providers, community based organization and through media advocacy.
  • NYIFUP attorneys have raised the level of practice in the immigration courts by providing high quality legal services.

The following two BDS NYIFUP client stories demonstrate how NYIFUP makes a difference in comparison to study results that have shown that 95 percent of detained unrepresented immigrants do not make a claim that would entitle them to stay in the country and 97 percent of detained unrepresented immigrants lose their cases.  Without representation, these two immigrants would virtually certainly have been deported.

Simon (a pseudonym) immigrated to the United States from the Dominican Republic as a Lawful Permanent Resident (green card holder) in 1992.  At that time, he joined his mother and sister in Brooklyn, who were operating two bodegas in Crown Heights.  Simon inherited one of the stores after his mother died in 1994, and managed it for the next seven years.  Thereafter, he worked a number of jobs, most recently as a medical equipment deliveryman.  He has not been able to work since 2010, however, when he suffered a debilitating on-the-job injury, slipping off his truck and sustaining severe back injuries.  He has had two back operations and suffers from chronic pain that needs to be managed through regular medication and therapy.

Simon was arrested in an ICE home raid in 2014 based on a 1999 misdemeanor drug possession conviction, for which he received a conditional discharge and no jail time.  His BDS NYIFUP lawyer argued that he was eligible for bond, but the judge ruled that the law precluded release.  Thereafter, NYIFUP counsel filed an application for cancellation of removal in immigration court, and a petition for a writ of habeas corpus in federal court, arguing for a bond hearing.  Before the application for habeas corpus was ruled upon, the immigration court granted the application for cancellation of removal based upon his strong family and community ties, entitling Simon to be reunited with his wife and sons and to remain permanently in the United States.

After successfully resolving his deportation case, Simon, with the help of BDS NYIFUP, applied for U.S. citizenship.  His application was approved and, on August 19, 2015, at the age of 49, Simon was sworn in as a U.S. citizen at federal court in Brooklyn, becoming one of the first NYIFUP clients to obtain citizenship after winning his deportation case.  Simon’s naturalization automatically made his one son who was still under 18 a U.S. citizen as well.

Christian (a pseudonym) was a long-time LPR from Panama who moved to the United States at 18 years old to join his mother in the United States.  Christian never knew his father, an African-American serviceman stationed at Fort Davis in the Panama Canal Zone.  In New York, Christian worked as a refrigerator and air conditioning repairman, as well as in construction. He also became father to five children of his own. His youngest daughter, Layla, is only two years old. Prior to Christian’s detention by Immigration and Customs Enforcement (“ICE”), he, Layla, and her mother, Victoria, lived together in uptown Manhattan.

On April 30, 2014, Christian was arrested by ICE while making a routine court appearance in Kings County Criminal Court.  He was detained and placed in removal proceedings.  Christian was detained in New Jersey for nearly six months and appeared pro se before an Immigration Judge three times.  Immigration officials said he was deportable based on misdemeanor convictions.  Christian informed the judge that his father was a United States citizen in the hope that he would be spared from deportation.  However, he struggled to fight his case alone and from detention.  Eventually, in the middle of October 2014, after over five months in detention, Christian obtained counsel through NYIFUP. His BDS NYIFUP lawyer told ICE officers that Christian had a citizenship claim through his USC father, and that he should never have been placed in detention. Christian was subsequently released on October 20, 2014.  His BDS NYIFUP attorney then briefed arguments that Christian’s proceedings should be terminated on the grounds that the government had not met its burden to prove alienage and that Christian had acquired citizenship at birth through his USC father.  The DHS trial attorney agreed with the latter argument, and filed his own motion to terminate on that ground. Christian’s case was terminated with prejudice on September 11, 2015, nearly a year after his release from detention. He has applied for proof of citizenship with USCIS, and reunited with his partner, his children, and his extended family in the United States.

These are just two of the stories of the more than 1,000 New Yorkers that NYIFUP attorneys represented last year. In FY 2016, NYIFUP is well on-track to serve over 1,200 New Yorkers.

Projected Intake  – TOTALS FOR ALL 3 NYIFUP PROVIDERS
FY 15 FY 16 FY 17
Clients Served 1,003 1,200 Approximately 1,400

 

ASK: For FY 2017, the NYIFUP providers are requesting that the City fund $2.37 million per legal service provider, for a total of $7.11 million for legal and social services.[8]

This amount will cover comprehensive legal services for 1,476 people facing deportation. This increase will allow us to represent more detained New Yorkers in need, as well as continue to provide high-quality representation in multiple forums for all of our clients.

b. Padilla -support for BDS’s criminal defense clients

While our NYIFUP clients involve a large portion of our immigration practice resources because of the complex nature of those cases, BDS serves an even larger number of immigrant clients through our Padilla practice team.

In 2010, the U.S. Supreme Court held in Padilla v. Kentucky that the Sixth Amendment requires defense counsel to provide affirmative, competent advice to a noncitizen defendant regarding the immigration consequences of a guilty plea.[9] Absent such advice, a noncitizen may raise a claim of ineffective assistance of counsel.

The consequences of the Padilla ruling for public defender offices like BDS have been nothing short of a sea change.  BDS hired its first immigration attorney in 2009, before the Padilla decision came down, to help advise BDS’s criminal defense attorneys and their noncitizen clients on the immigration consequences of guilty pleas and avoid or minimize the negative immigration consequences to the fullest extent possible. Since Padilla, our Padilla practice team has grown to five full-time equivalent immigration attorneys who provide this critical Padilla support to our noncitizen clients facing criminal charges.  Still, with a criminal defense practice that represents around 40,000 Brooklyn residents every year, BDS requires additional resources to grow our Padilla practice team to meet the full extent of need.

About 23% of BDS’s annual 40,000 criminal defense clients are foreign-born, roughly half of whom are not naturalized citizens and therefore at risk of deportation or loss of opportunity to obtain lawful immigration status as a result of their criminal case.  On average, our Padilla team is called at least once in each arraignment shift to advise on the ramification of a plea offer at arraignment, and they provide support and expertise on about 5% of the cases that survive arraignment.  The Padilla practice attorneys frequently go to court to explain the law and/or clarify issues for the prosecutor and judge in specific cases.  They also work with BDS criminal defense attorneys on pre-pleading memoranda and to review prior convictions (identifying potential post-conviction relief options for clients) when that could mitigate the immigration consequences of the criminal case. The Padilla team writes travel letters for our noncitizen clients, explaining the facts of the current case to facilitate their re-entry into the U.S. without problems.  Finally, because their Padilla consultations often require full immigration history interviews with clients, the team identifies available options for these clients to obtain lawful immigration status, advising them of those opportunities and either making internal referrals to our Immigrant Youth and Communities Project, described below, or external referrals when our Immigrant Youth and Communities Project has insufficient capacity.

The following two Padilla Team client stories illustrate how critical Padilla immigration legal support can be for our noncitizen criminal defense clients:

Sonia (a pseudonym).  Toward the end of 2013, in the midst of unprecedented levels of violence in her home country of Honduras, Sonia began receiving threats from the same gang members who had killed her father, sister, and uncle.  Fearing for her life, she and her young daughter left their remaining family behind and traveled to the United States, where they hoped to live with a cousin.  Nearly a year after arriving, Sonia was arrested for improperly disciplining her daughter (she had been using methods that were common and acceptable in Honduras), and she was charged with endangering the welfare of a child. When Sonia’s public defender learned that Sonia did not have lawful status in the United States, she referred the case to a BDS Padilla attorney.  Upon hearing her story of persecution in Honduras, the BDS Padilla attorney, working with our Immigrant Youth & Communities Project (below), filed an asylum application on her behalf, narrowly avoiding the statutory bar for applications filed more than one year after a noncitizen’s entry to the United States.  He also identified the possibility of Special Immigrant Juvenile Status for the daughter, who had been abandoned at birth by her father. BDS is now working on obtaining SIJS for Sonia’s daughter.

Claudia (a pseudonym).  Claudia married the man she hoped would be the love of her life.  Within two months, however, she learned that he was having an affair.  When she confronted him, he began a cycle of physical and mental abuse against her, apparently with the goal of convincing her to stay with him.  The abuse continued even after she ended their relationship and he would frequently show up to her home and place of work to berate her.  Claudia eventually went to a center for survivors of domestic violence where she was connected with a pro bono attorney.  She then filed a petition for permanent residence under the Violence Against Women Act (“VAWA”).  She was awaiting a decision from the U.S. Citizenship and Immigration Service when her ex-husband again forced his way into her home.  When he saw that she was wearing a jacket he had bought her, he grabbed a knife and attempted to cut it off of her.  In the process, he ended up cutting himself.  He called the police and stated that she had assaulted him with a knife.  Claudia was arrested and charged with a number of misdemeanor offenses, a conviction of some of which could have taken away her only defense to deportation.  Due to the ex-husband’s injury, which required stitches, the Kings County District Attorney’s Office was not initially sympathetic to Claudia’s self-defense claim. The BDS defense team including the assigned Padilla attorney, submitted a letter to the DA explaining the client’s history of abuse, her impressive career goals (she was enrolled in nursing school), and the potentially drastic immigration consequences a conviction would have. The Assistant DA was moved by the letter and agreed to an adjournment in contemplation of dismissal, an outcome that carries no immigration consequences.  Claudia’s application for permanent residence was approved soon thereafter.

Ask: We are requesting that the City Council support our request to the Mayor’s Office of Criminal Justice for supplemental funding to cover increasing criminal defense costs, including Padilla costs.

c. BDS’s Immigrant Youth and Communities Project—Quality Representation for both Simple and Complex Immigration Cases

In addition to our advocacy work with LEAP (described above), BDS has applied separately for funds from the City Council’s Immigrant Opportunities Initiative (IOI) to provide a broad range of immigration legal services to Brooklyn’s low-income immigrant youth and families.  IOI funding would help fund BDS’s Immigrant Youth and Communities Project. Since launching the project in 2012, BDS has represented thousands of Brooklyn immigrants in their applications for lawful immigration status and in defending against deportation in non-detained removal proceedings.  Highlights of our work include assisting more than 320 young clients in their pursuit of Special Immigrant Juvenile Status (SIJS), Adjustment of Status, U visas, Deferred Action for Childhood Arrivals (DACA) and other immigration benefits or removal defense, and assisting more than 1,000 Haitian New Yorkers with their applications for Temporary Protected Status, work authorization, and other immigration benefits or removal defense.

Our Immigrant Youth and Communities Project seeks to strengthen Brooklyn’s immigrant communities by procuring or retaining lawful immigration status for its immigrant youth and adults, bringing them out of the shadows and securing their meaningful access to justice and opportunity.  With IOI funding, BDS can maintain and grow our Project staff to provide community education, legal screening, advice and full representation to low-income Brooklyn immigrant youth and adults borough-wide, in their pursuit of affirmative immigration benefits such as citizenship, lawful permanent residence, asylum, Special Immigrant Juvenile Status, special trafficking and victims’ visas, VAWA relief, TPS, and DACA, and in their defense against deportation in non-detained deportation proceedings.

Although BDS’s Immigrant Youth and Communities Project includes application assistance in simple cases such as DACA and TPS, we have extensive expertise in the delivery of quality legal representation in much more complex immigration cases.

  • Cases involving appeals to the Board of Immigration Appeals (BIA), the Administrative Appeals Office (AAO), or state or federal courts where necessary or appropriate, such as an appeal to a higher state court upon the denial of a family court guardianship petition, or a federal habeas petition or Petition for Review. BDS’s Immigration Practice has considerable experience litigating complex immigration cases at the appellate levels.
    • We have represented clients in 35 BIA and AAO appeals in the last two years, primarily in the removal defense context whether we pursued the appeals on behalf of our clients or defended our clients against appeals brought by the government to challenge immigration judges’ decisions in favor of our clients;
    • We have represented clients in 29 federal habeas petitions in the last two years, challenging our detained immigrant clients’ being held subject to mandatory detention without the opportunity to seek release on bond.
  • Non-detained removal defense cases. BDS represents hundreds of detained immigrant New Yorkers each year through NYIFUP. Consequently, our removal defense expertise is deep and ongoing.  BDS’s representation of immigrants in non-detained removal proceedings that are not covered by NYIFUP, however, remains currently unfunded, and our request to the City Council for FY 2017 IOI funding would allow us to continue and grow this aspect of our work.
  • Affirmative benefits cases that routinely involve more substantial attorney or BIA-accredited representative work, such as Special Immigrant Juvenile cases; U visas, S visas, and T visas; VAWA self-petitions; I-485 adjustment of status applications that also require I-601 waivers (of unlawful presence or criminal inadmissibility bars) or I-212 waivers (for prior deportation/removal cases) or other waivers; and Asylum. Our Immigration Practice handles many of these more complex affirmative benefits cases. For example, we undertook 93 SIJS cases and 23 U visa cases in the last two years alone.  And in both affirmative and defensive cases, we have engaged in 133 cases involving I-589 asylum and related persecution-based claims on behalf of clients.
  • Other affirmative benefits cases (including those that may otherwise be more straightforward applications but that present complications such as evidentiary issues or criminal histories). As an Immigration Practice that is integrated into a larger public defender office, BDS is expert in representing criminal justice-involved immigrants—a population generally underserved by other immigrant legal service providers and an extremely complicated area of law.  As just one example of this type of complex case we are well-suited to serve, a participant who may be eligible for Adjustment of Status may have a criminal arrest record that requires gathering of criminal court records, careful analysis thereof, and—if the participant is indeed adjustment-eligible— full representation in the preparation of a more substantial adjustment application complete with evidence of rehabilitation and other equities such as to enhance likely USCIS approval.

The following are just a few examples of the very complex immigration cases BDS works on:

  • SIJS case made further complicated by a necessary appeal – We handled a successful appeal of a denial by a family court judge in a case involving Special Immigrant Juvenile Status (SIJS) client Alicia (name is a pseudonym). Following appeal to the 2nd Department Appellate Division of the New York State Supreme Court, the case was remanded to the family court and was ultimately granted by the family court judge. Alicia’s application for SIJS has since been approved and her removal proceedings terminated, and she hopes to receive her green card in the next several months.
  • Case involving prior removal order – BDS has represented numerous children and adults in reopening prior orders of removal, allowing them to pursue benefits such as Special Immigrant Juvenile Status, asylum, and family-based petitions. Carlos (a pseudonym) is eight years old and a client of BDS. Carlos failed to attend an immigration court hearing because his father got into a car accident while taking him to court. BDS filed a motion to reopen Carlos’ case, arguing that the car accident, combined with the child’s young age and dependency on his father, constituted “exceptional circumstances” warranting reopening of the case.  The immigration court reopened Carlos’ case, and he is now in the process of seeking Special Immigrant Juvenile Status, with our legal representation, based on severe neglect by his mother in Honduras.
  • Case of Crim-Imm, Removal Defense, and Complex Adjustment of Status – Michael (a pseudonym), age 32, is from Haiti, and has lived in the U.S. since he was only seven years old. He does not know how or with whom he entered the U.S.  When Michael was still a teenager, his father, a U.S. citizen, applied to sponsor Michael for a green card, but their private attorney failed to respond to requests for evidence from the former Immigration & Naturalization Service (INS), and he never received his green card.  Years later, in 2009, he was arrested and charged with sale of a controlled substance.  He initially pled guilty to possession of a controlled substance, rendering him ineligible for most immigration benefits including a green card.  Michael was subsequently transferred to immigration (ICE) custody and placed into removal (deportation) proceedings, and BDS recruited pro bono counsel to represent him in these proceedings.  BDS mentored pro bono counsel who assisted Michael in applying for a range of possible remedies against deportation, including Temporary Protected Status for Haitian nationals and protection under the Convention Against Torture (CAT).  While his removal case was pending, BDS attorneys also advocated on Michael’s behalf in criminal court, asking the judge to allow Michael to withdraw his guilty plea, and to allow him to participate in a drug treatment program so that his case could later be dismissed.  Once Michael’s plea was vacated, Michael was released on bond from immigration detention.  After Michael’s criminal case was successfully dismissed, BDS attorneys were able to secure termination of his removal case, and to finally help him apply once more for his green card, this time under a complex provision of the Immigration and Nationality Act known as 245(i).  BDS counsel accompanied Michael to his green card interview in February 2016, and the immigration officer indicated that he intends to recommend Michael’s case for approval.

Ask: BDS requires substantial funding from Immigrant Opportunities Initiative (IOI), through the City Council, and/or an HRA RFP to continue serving Brooklyn’s immigrant youth and communities with high-quality immigration legal services.

V. Conclusion

Thank you again for this opportunity to share with you the life-changing impact that City Council funds have had on the thousands of immigrant clients that BDS represents every year. I trust that the testimony you hear from BDS and other service providers underscores for you the tremendous importance that City Council funding plays in protecting our immigrant New Yorkers, keeping their families united, and keeping our communities stronger. The next several months will continue to be times of political uncertainty and fear, as presidential candidates campaign on anti-immigrant platforms and we await the U.S. Supreme Court decision in the DACA case. The election in November will certainly have a dramatic impact on this climate of fear and uncertainty one way or another, and may dramatically impact enforcement trends. It is vital that the City of New York be poised to react to whatever political fallout results from the election. BDS looks forward to collaborating with City Council, city agencies, other service providers and community groups through our coalition work to ensure that New York City continues to provide immigrant families, employers and communities with the legal services we need to ensure success and growth for all.

[1] Liz Robbins, “Rumors of Immigration Raids Stoke Fear in New York,” New York Times, Jan. 6, 2016.

[2] Pamela Constable, “Deportation raids to continue, despite outcry,” The Washington Post, Jan. 8, 2016.

[3] See Kirk Semple, “Advocates Seek to Make Courthouses Off Limits to Immigration Officials,” New York Times, May 26, 2014; see also Max Rivlin-Nadler, “Why Are the Feds Stalking Immigrants at Courthouses in New York?,” Vice, Dec. 9, 2015.

[4] See The Center for Popular Democracy, The New York Immigrant Family Unity Project: Good for Families, Good for Employers and Good for All New Yorkers, available at http://populardemocracy.org/sites/default/files/immgrant_family_unity_project_print_layout.pdf

[5] One of our paralegals is fully accredited by the Board of Immigration Appeals (BIA). The other four paralegals on our Immigration Practice Team are partially accredited by the BIA.

[6] The Center for Popular Democracy, The New York Immigrant Family Unity Project: Good for Families, Good for Employers and Good for All New Yorkers, available at http://populardemocracy.org/sites/default/files/immgrant_family_unity_project_print_layout.pdf

[7] Batya Ungar-Sargon, “Immigrants’ fates depend on access to lawyers,” City Limits, Dec. 17, 2015, available at http://citylimits.org/2015/12/17/immigrants-fates-depend-on-access-to-lawyers/.

[8] While our carry-over docket has built up over the past two years, we anticipate it plateauing in FY 2017 as more of our non-detained carryover cases from FY 2105 are resolved.  Starting with FY 2017, we believe our carry-over non-detained caseload will level out due to increased resources at 26 Federal Plaza and the natural catching up of our trial dates.

[9] Padilla v. Commonwealth of Kentucky, 559 U.S. 356 (2010).

TESTIMONIO DE SAMUEL DAVID FLORES MURILLO – NY CITY COUNCIL IMMIGRATION COMMITTEE BUDGET AND NYIFUP HEARING (SPANISH)

NEW YORK CITY COUNCIL – IMMIGRATION COMMITTEE

BUDGET & NYIFUP HEARING

MARCH 28, 2016, 2 P.M.

TESTIMONIO DE SAMUEL DAVID FLORES MURILLO

Mi nombre es Samuel David Flores Murillo. Yo doy gracias a la ciudad de Nueva York que apoyo este programa de NYIUP que a mí me permitió tener mi caso antes de un corte con un representante legal, mientras tanto estaba detenido.

Soy hijo de Margarita Murillo, una defensora de derechos humanos y derechos de los campesinos en Honduras durante toda su vida. Inmigré a los estados unidos en el anos 2005 por el motivo de persecución política que me ponía en peligro, como resultado del trabajo de mama. En el año 2006 fui arrestado por inmigración. Fui deportado porque no tenía alguien que me representara en mi caso. Nada más me presentaron frente al juez, no entendí mucho, fui muy joven para entender los procedimientos, y no hubo traductor. Yo entendí que me iban a deportar por haber entrado ilegal, y me hicieron firmar un papel y ya. Yo regresé a los Estados Unidos un año después, por la misma razon, y me deportaron otra vez en 2009. Durante todos esos años, seguía la persecución de mi mama y mi familia debido al trabajo de mi madre por su trabajo político u por luchar por los derechos de la gente.

Dos meses después de haber regresado a Honduras en 2009, hubo el golpe del estado de Honduras, en que el ejército de Honduras secuestró al presidente Manuel Zelaya Rosales y lo sacó del país. Estaba muy “caliente” o peligroso en estos días porque el pueblo rechazó las acciones de las fuerzas armadas. Como dos semanas después del golpe del estado, yo fui secuestrado por media noche de mi casa por personas desconocidos, armadas, durante casi un mes. En ese tiempo, mis captores me interrogaron sobre mi madre y sus acciones políticas. Cuando no cooperé con ellos, me torturaron. Finalmente, llevaron mi cuerpo al interpedie del campo. Casi había perdido la conciencia por todos los heridos que tenía. Me botaron y me dejaron por muerto, hasta que escuche que uno de ellos dio, ‘Dale un balazo en la cabeza para más asegurarse que estuviera muerto’ y el otro respondió ‘que no, ya está muerto.’

Gracias a Dios, sobreviví al intentado a asesinarme. Escapé, recuperé y regresé a los EEUU, pero viviendo como indocumentado. En Julio de 2014 caí otra vez en las manos de migración. Me detuvieron y me iban a deportar; esta vez, asistí a una presentación de “conocer sus derechos” y me informaron de la defensa que existe para las personas que son víctimas de la persecución. Entonces, escribí una carta a mi oficial de migración pidiendo que no me deportaran porque tenía miedo de regresar a mi país por razones políticas. Después de rechazar mi carta varias veces, finalmente me mandaron una contestación e hicieron cita con una oficial de asilo.

Mientras tanto eso estaba pasando, yo estaba en el teléfono marcando a muchas organizaciones de abogados pidiendo que me representaron, pero ninguno de ellos aceptaron mi caso. Además, en los días que estaba esperando a la cita con asilo, me enteré de las noticias terribles de que habían asesinado a mi madre en Honduras. Sentí completamente impotente para responder; y sentía aun más presión para defenderme solo con las noticias de su asesinato.

Llegando a la corte, me encontré con los abogados de Brooklyn Defender Services, y gracias a Dios tomaron mi caso. Me pusieron en manos de la abogada Tracy Lawson. Con su dedicación su entrega, y su buena representación, salimos adelante en mi caso, contado las suficientes pruebas.

La diferencia entre tener abogado y no tener abogado es una diferencia enorme. La fiscal en mi caso trataba de que me deportaran de la manera que fuera posible, no me ayudó mucho. Ella rechazó y contestó todo lo que decía, trataba de alagar y alagar y alagar el caso. Creo que lo hizo para que yo me desesperara; y no fui elegible para una fianza, entonces cada demora que ella hizo costó muchos meses más de detención. Ella nos hizo hacer trámites que ya se habían hecho, pero que ella no aceptó.

Con abogada, entendí los procedimientos y el trabajo necesario para poder tener éxito. Sin abogada, no hubiera tenido la confianza de poder ganar mi caso; al contrario, yo sólo hubiera desesperado con tantas demoras, que firmara mi deportación. Lo hubiera hecho aunque sabía que solo me quedara la muerte, porque hubiera seguido el trabajo de mi mama en Honduras.

La abogada pudo comunicar con muchas personas afuera – mi familia y conocidos en Honduras; los defensores de derechos humanos de parte de Honduras que me apoyaron aquí en Nueva York, y quienes vinieron a apoyarme en la corte. Sin abogado, no hubiera podido saber que es que necesitaba de pruebas y documentos; aún más, cuando un es detenido uno no puede llamar a muchas personas; las llamadas son muy caros, aun mas si son internacionales. No tiene libertad de buscar las pruebas y hacer los trámites necesarios para apoyar a su caso. Aun mas, la abogada consiguió una experta que dio testimonio a la situación grave en Honduras, y ajunto muchos reportes de los medios tal nacionales que internacionales, acerca del asesinato de mi madre y la situación política en Honduras. No hubiera podido hacer eso yo solo.

Yo puedo decir con 100% de certeza de que si no tenía abogada en ese caso, yo creo ciertamente que hubiera muerto en Honduras ahora.

Después de casi un año de estar detenido por inmigración, finalmente la fiscal concedió que habíamos probado nuestro caso, y el juez paro mi deportación. Desde entonces, mi abogada me ha estado ayudando con otros asuntos también, como buscar servicios médicos, conseguir el permiso de trabajo, y muchas cosas más. También ella ayudo a mi familia obtener representación legal ambos a mi hermana y sobrina quien recién llegaron a los estado unidos, y a mi hermano quien también está en procedimientos de deportación. Entonces, el apoyo que me da mi abogada extiende más allá de su trabajo en corte sino que ayudarme en varios aspectos de mi vida después de ganar mi caso.

Casi todos mis compañeros detenido que tenían abogados del programa ganaron sus casos o salieron de detención bajo fianza. Todos dependen mucho del programa. Aún más pueden confiar en el trabajo bueno de ellos, porque algunos abogados privados toman el dinero del inmigrante y después no hacen un buen trabajo, y puede perder su caso y perder mucho dinero también.

En conclusión, Yo, Samuel David Flores Murillo, viva, sana, y con poder de vivir no como indocumentado sino que como un residente reconocido por la ciudad de Nueva York, respetuosamente y sinceramente pido a la que POR FAVOR sigue apoyando al proyecto y al Brooklyn Defenders y del programa de NYIFUP para el beneficio de todos los migrantes detenidos, y no detenidos, que necesitan defender a sus casos.

TESTIMONY OF SAMUEL DAVID FLORES MURILLO AT NY CITY COUNCIL IMMIGRATION COMMITTEE BUDGET AND NYIFUP HEARING (ENGLISH)

NEW YORK CITY COUNCIL – IMMIGRATION COMMITTEE

BUDGET & NYIFUP HEARING

MARCH 28, 2016, 2 P.M.

TESTIMONY OF SAMUEL FLORES DAVID MURILLO

My name is Samuel David Flores Murillo. I would like to thank the New York City Counsel for supporting the New York Immigrant Family Unity Project, a project which allowed me to have a legal representative with me while I was detained during my Immigration Court case and ultimately saved my life by winning my case for me to stay in the United States.

I am the son of Margarita Murillo, who fought for the rights of farmers and for human rights in Honduras. I immigrated to the United States in 2005 to escape the political persecution I was facing due to my mother’s work. In 2006, I was arrested by immigration. I was deported, because I didn’t have anyone to represent me in that case. All that they did was put me in a room with a judge; I didn’t understand much, I was too young to understand what was going on, and there was not a translator. I only understood that they were going to deport me because I had entered illegally; they made me sign a paper and that was it. Later I returned to the U.S. for the same reason, and I was deported again in 2009. During all of those years, the persecution against my mother and my family continued, because of her political activism and her work fighting for the rights of the people.

Two months after I was deported to Honduras in 2009, there was the coup d’état, where the military of Honduras kidnapped President Manuel Zelaya Rosales, and took him out of the country. The country was very volatile and dangerous during those days because the people rejected the actions of the armed forces. About two weeks after the coup, some unknown men kidnapped me from my house at gunpoint during the middle of the night, and they kept me captive for about a month. They interrogated me about my mother’s work. When I didn’t cooperate with them, they tortured me. After they tortured me, they took my body and dumped it in the countryside. I had nearly lost consciousness because of all of the injuries I sustained. They tossed me away and left me, believing that I was dead – I even heard one of them say, “Give him a bullet in the head to make sure he’s dead,” and the other one replied, “he’s already dead.”

Thank God, I survived this assassination attempt. I escaped, recovered, and returned to the United States, but I was living in the shadows because I was undocumented. In July of 2014, once again I fell into the hands of immigration. They detained me and were planning to deport me again; but this time I went to a “Know Your Rights” presentation and I learned about the legal defense available to people who are victims of persecution in their countries. I wrote a letter to my deportation officer and, after being rejected a few times, they scheduled an interview with an asylum officer.

While this was happening, I was trying to call around to many different legal organizations, asking for someone to take my case and represent me, but none of them accepted my case. Then, while I was waiting for the date of my interview with the asylum officer, I learned the terrible news that my mother, Margarita Murillo, was assassinated in Honduras. I was devastated; felt completely powerless to respond; and I felt even more pressure about trying to defend myself with the news of her assassination.

Arriving in court, I found an attorney from Brooklyn Defender Services. Thank God they took my case. They put me into the hands of Tracy Lawson. With her dedication and service, her good representation, we got all of the evidence we needed and we prevailed in my case.

The difference between having an attorney and not having an attorney is enormous. The prosecutor in my case tried to make them deport me by any means necessary; she did not help in any way. She rejected our evidence and rejected my testimony; she found ways to delay and delay and delay the case. I believe she did that so that I would get desperate. Because I wasn’t eligible for a bond, each delay cost me many more months detained. She made us jump through hoops to get documents that we had already provided but that she wouldn’t accept.

With an attorney working on my case, I understood the proceedings and all the work necessary to be successful in the case. Without an attorney, I would not have had the confidence to be able to defend myself; on the contrary, alone, I would have become desperate with so many delays, that I am sure I would have signed out and let them deport me. I would have done that even though I knew that the only thing that waited for me in Honduras was death, because I would have taken up my mother’s cause in Honduras.

During my case, my attorney was able to communicate with many people on the outside – my family and acquaintances in Honduras, the human rights defenders supporting me and coming to court here in New York. Without an attorney, I would not have known what evidence and documents were needed, and I would not have been able to make calls to Honduras to get them. The calls from the jail are extremely expensive. A detained person does not have the ability to collect documents and evidence and to comply with all of the required procedures to support their case. What is more, the attorney found an expert that gave up-to-date testimony about the situation in Honduras and collected news reports, national and international, about the assassination of my mother and the situation in Honduras. I could not have done that if I were defending myself alone.

I can say, with 100% certainty, that if I did not have an attorney in my immigration case, I firmly believe that I would be dead in Honduras today.

After being detained nearly a year by immigration, the prosecutor finally conceded that we proved my case, and the judge stopped my deportation. Since then, my attorney has also been helping me with other matters as well; she helped me find medical services, she helped me get employment authorization, and many other things. She also helped my family – she helped my sister and niece, who came to the US recently, after our mother was assassinated, to find an attorney, and she helped my brother, who is in deportation proceedings, too, find an attorney. All of this is to say, that the work of my attorney extends far beyond her work in the courtroom and she has helped me in various aspects since we won my case.

Almost all of the other detained immigrants that I met during my year of detention had attorneys from the NYIFUP program; many of them either won their cases or got out on a bond. Everyone depends a lot on this program. What is more, we can trust the quality of their work, because even some private attorneys will take an immigrant’s money and they won’t do a good job, so then the immigrant loses their case and loses a lot of money, too.

In conclusion, I, Samuel David Flores Murillo – alive, healthy, and with the power to live not as an undocumented person, but as a resident recognized by the City of New York, respectfully and sincerely ask that, Please, continue to support the NYIFUP project and the Brooklyn Defender Services, for the benefit of all of the immigrants, detained and not detained, that need to defend their cases.

BDS TESTIFIES AT CITY HUMAN RIGHTS COMMISSION HEARING ON PROPOSED RULES CHANGES

TESTIMONY OF:

Keren Farkas, Esq. – Supervising Attorney

BROOKLYN DEFENDER SERVICES

Presented before

The New York City Commission on Human Rights

Public Hearing on Fair Chance Act Proposed Rules

March 21, 2016

My name is Keren Farkas and I am a Supervising Attorney at Brooklyn Defender Services. BDS provides innovative, multi-disciplinary, and client-centered criminal, family, and immigration defense as well as civil legal services, social work support and advocacy for 45,000 clients in Brooklyn ever year.

We thank the New York City Commission on Human Rights for the opportunity to testify about the proposed rules implementing the new requirements of the Fair Chance Act. At Brooklyn Defender Services, we believe the legislation is incredibly significant with tremendous potential to level the employment playing field for our clients. In the short time since its enactment, we have already seen its impact on employer hiring practices and the opportunity for our clients to be fairly considered for job opportunities.

As an illustration, I would like to highlight our client’s recent path to employment as a train operator for the MTA New York City Transit:

Krystal was arrested for an alleged altercation between her and a neighbor in a NYCHA housing complex. She was charged with misdemeanor assault based on allegations that were exaggerated and a misrepresentation of what actually occurred.  Krystal’s assigned criminal defense attorney was confident that the case would ultimately get dismissed but, due to typical court delays, it would likely take some time.

Several weeks after Krystal was arraigned on the charges, she was invited for an interview with the MTA for a train operator position.  She was very excited about the opportunity, but also worried that the pending case would frustrate her chances for employment.  However, because the MTA is following the new requirements created by the Fair Chance Act, Krystal was not asked about her arrest or conviction history during her initial interviews. Rather, she was only assessed based on her qualifications. She performed well and received a conditional offer letter. She was then invited for a second round assessment which, among other things, included a criminal history check. Fortunately, her BDS criminal defense attorney successfully resolved her case with immediate sealing prior to Krystal’s second round interview. Krystal has now been working as a train operator for three weeks. But for the Fair Chance Act, she may have missed that opportunity.

We commend the NYC Commission on Human Rights for proposing rules to facilitate uniform and fair application of the Fair Chance Act. We have signed on to the written comments submitted by the Coalition of Reentry Advocates (CoRA) and share their recommendations for additional guidance and clarification to enhance understanding of the Act amongst employers, employees and advocates. We believe the rules will significantly inform compliance, but want to emphasize that regular and targeted trainings for employers and employees alike are a necessary piece to ensuring the Fair Chance Act reaches its potential.

For the remainder of this testimony, I would like to briefly draw attention to several areas of the proposed rules of particular interest to BDS’ client population:

  • Application to Pending Cases – We strongly support the clarity the rules bring to the breadth of the Fair Chance Act’s application. The added definitions and consistent language throughout Section 2-04 elucidate that the Fair Chance Act protections extend to individuals facing pending charges. We believe this clarification will finally ensure that individuals who have not been found guilty of any crime, like Krystal, will receive fair consideration by employers before any inquiries into present or previous criminal cases. Notably, it will protect our clients who have unsealed Adjournments in Contemplation of Dismissals and, previously, had been excluded from Article 23-A protections and experienced unnecessary barriers to stable employment.
  • Including unsealed violations in the definition of “criminal history” – Similarly, we share in CoRA’s recommendation to include unsealed violations within the definition of “criminal history.” Clients who have pled to non-criminal convictions with a sentence of Conditional Discharge may face confusion or resistance from employers. The explicit inclusion of “unsealed violations” in the definition of criminal history would ensure those clients are also protected by the Fair Chance Act. Because these are non-criminal convictions, however, we ask that an educational note be included in the rules to ensure employers understand the distinction between violations and misdemeanors and felonies.
  • Application to Current Employees – Another clarification provided in Section 2-04(5) we would like to highlight is the Act’s application to current employees when facing pending charges or convictions. In our office, we frequently hear from clients who have been suspended or terminated from their job due to an arrest or conviction. The employer’s decisions often seem mechanical, without regard to the particular charges, job duties, the client’s professional history or any consideration comparable to the Article 23-A analysis. As a result, we have sadly seen numerous clients lose employment and financial stability due to completely attenuated circumstances. Now, with the protections and transparent procedures clarified in the rules, particularly Section 2-04(5), these individuals will receive an Article 23-A analysis and be spared unwarranted loss of employment. Further, they will finally have an available recourse and remedy when employers take unjustified adverse action.
  • Clarification regarding FCA’s application to statutorily mandated background checks – A significant portion of our employed clients work in positions and have licenses where state, federal or local law require criminal background checks and dictate disqualifying convictions. While FCA clearly exempts those employers from following FCA when it directly conflicts with such laws, there are many circumstances that do not directly conflict, and the employers should be held to the Fair Chance Process. For instance, we recently had a client who was suspended from his position as a building service aide at a nursing home upon being arrested for Driving While Intoxicated. We believe the language of the Fair Chance Act did not exempt his employers from abiding by the Fair Chance Process when considering the new arrest, and he was entitled to an Article 23-A analysis before they took adverse action. We ask that the rules clarify the limitations of the exemption for these employers to ensure that individuals, like our client, receive the FCA protections when appropriate.
  • Fair Chance Process: We appreciate the clarity provided around the “Fair Chance Process,” and also share CoRA’s recommendation for improvement. The standardized forms and required paper trail will ensure that applicants are privy to an employer’s decision-making process and can knowingly determine whether the employer engaged in an actionable discriminatory employment practice. We share CoRA’s recommendation that an employer should share responsibility to both obtain information to conduct a thorough Article 23-A analysis and address suspected RAP sheet errors. While we are encouraged by the explicit requirements that employers provide applicants with reasonable time to address an employer’s concerns, we are concerned that, in many cases, three days will be insufficient. Accordingly, we strongly share CoRA’s recommendation that the timeframe be extended, especially when suspected rap sheet errors are the concern.

Thank you again for the opportunity to submit testimony today. I would be happy to answer any questions you may have.

BDS SUBMITS TESTIMONY TO COUNCIL ON DOE’S SUPPORT FOR STUDENTS WHO ARE HOMELESS OR IN TEMPORARY HOUSING

TESTIMONY OF:

Keren Farkas, Esq. – Director, Education Unit

BROOKLYN DEFENDER SERVICES

Presented before

The City Council’s Committees on Education and General Welfare

“Oversight: DOE’s Support for Students who are Homeless or in Temporary Housing”

February 4, 2016

My name is Keren Farkas and I am the Director of Brooklyn Defender Services’ (BDS) Education Unit. BDS provides innovative, multi-disciplinary, and client-centered criminal defense, family defense, immigration, civil legal services, social work support and advocacy to more than 40,000 indigent Brooklyn residents every year. I thank the New York City Council on Education and General Welfare for the opportunity to submit testimony.

BDS is fortunate to have the support of the City Council, as well as other elected officials and the Office of Court Administration, to supplement the services we provide as the public defense office in Brooklyn.  We have developed a model of specialization to best represent certain types of clients, including adolescents.  Through specialized units of the office, we provide extensive wrap-around services that meet the needs of these traditionally under-served clients in a comprehensive way. This includes helping young people and their families navigate the public education bureaucracy during and after contact with the criminal justice and family court system.

BDS’ Education Unit provides legal representation and informal advocacy to our school-age clients. We work with young people impacted by the criminal justice and child welfare systems.  As a legal and social work team, we work to improve our client’s access to education, and a significant portion of our advocacy relates to school discipline, special education, reentry and alternative pathways to graduation.

Our multi-disciplinary staff has witnessed first-hand the trauma and instability often experienced by young people in temporary housing. The transition to temporary housing is characteristically stressful and problematic.   Too often, families are removed from their familiar neighborhood and communities. They are placed in shelters or other temporary living arrangements in boroughs and neighborhoods hours from their accustomed surroundings. Further, shelter conditions can be unclean and lacking. School-age children experience particular hardships.  After placement in temporary housing, their once local and zoned school is only accessible by long and unsustainable commutes. They are faced with the unfair choice between either an unfamiliar nearby school or remaining in their home school but enduring a long, potentially impossible, commute. Meaningful school stability, through a transfer to a shelter close to the child’s home school or school bus transportation, is often only available when a family is working with an advocate. Further, regardless of school choice, these students may experience emotional distress that may manifest in educational or behavioral difficulties, requiring thoughtful and targeted interventions by school staff. Without increased attention, these students are more susceptible to absenteeism, school disengagement and poor academic performance.

Brooklyn Defender Services believes that improved collaboration between the relevant city agencies, namely Department of Education (DOE), Department of Homeless Services (DHS) and Human Resources Administration (HRA), is essential to positively impact the educational stability of students in temporary housing.   While each agency has its own dedicated staff to consider McKinney-Vento Act compliance, there is an opportunity to better effectuate the interdependent responsibilities.

The remainder of my testimony will briefly highlight two critical pathways towards increasing school stability for students who are Homeless or in Temporary Housing:

  1. Enhanced Coordination to Place Families Near Home Schools

Increased attention must be given to ensure families are placed in their home borough, near children’s schools, upon initial admission to Prevention Assistance and Temporary Housing (PATH).  Regularly, our clients contact us after applying to PATH to notify us that they were placed in an unfamiliar borough. Despite informing the staff at PATH that their child’s school is in Brooklyn, they receive a placement in Queens or Manhattan. Among other things, they are worried about how their child will get to school the next day. Where a student has an Individualized Education Program and receives specialized services, this experience can be particularly distressing.  Even if school transportation is offered, our clients question whether an hour long bus ride is appropriate for their young child. While considering school options, students face days or weeks of tardiness and absences, only compounding the problems they endure.

DHS and DOE, along with other relevant agencies, must create a more seamless path towards ensuring families can reside in a shelter close to their children’s school. Although well-meaning, PATH/DHS staff and education liaisons can be discouraging and unhelpful towards effectuating transfers or school transportation.  Parents often do not feel they have any option but to transfer their child to the local school, compromising their school stability.  Through advocacy, BDS can often assist families transfer to shelters near their children’s school. We are hopeful that DHS can create an easier and more transparent process where families can be initially placed or transferred to shelters so children can remain in their original schools.

  1. Accessible and Practical School Transportation to Maintain School Stability

Accessible transportation is a crucial tool towards securing school stability for students in temporary housing. BDS is encouraged by DOE’s efforts to identify bus routes for students in temporary housing to travel to their home schools. However, eligible students remain without school bus transportation. While DOE maintains that a MetroCard satisfies the McKinney-Vento Act’s transportation responsibility, it is often deficient. In New York City, where transportation can involve multiple transfers in all forms of weather, MetroCard’s often only offer impractical and unsustainable options, especially for younger children. Without feasible transportation options, parents often feel their only choice is to transfer their child to the nearby school, disrupting school stability. DHS and DOE, along with other relevant agencies, must create a quicker and more transparent process to secure yellow bus travel for students. While education liaisons typically do help parents apply for transportation, the timeline is often unpredictable. Additionally, parents are not kept informed of the process and potential options.  The agencies should work together to create a transparent policy, including a timeline, to ensure eligible families receive sustainable transportation options so students can remain in their home schools.

Thank you again for the opportunity to submit testimony today. I would be happy to answer any questions you may have.

BDS TESTIFIES BEFORE COUNCIL ON PROPOSED CHANGES TO ENFORCEMENT OF QUALITY OF LIFE OFFENSES

TESTIMONY OF:

Lisa Schreibersdorf – Executive Director

BROOKLYN DEFENDER SERVICES

PRESENTED BEFORE

The New York City Council Committee on Public Safety

JANUARY 25, 2016

My name is Lisa Schreibersdorf. I am the Executive Director of Brooklyn Defender Services (BDS). BDS provides innovative, multi-disciplinary, and client-centered criminal, family, and immigration defense, as well as civil legal services, social work support and advocacy, for 40,000 clients in Brooklyn every year. Because of this work we have a front-row seat in which to view most of the City’s criminal justice practices and policies. We are thankful that the New York City Council is continuing to seriously look at the wide-ranging harms, direct and collateral, inflicted by the criminal justice system with an eye toward balance, proportionality, fairness and racial equity. Specifically we would like to thank the Committee on Public Safety for extending to us the opportunity to testify about the bills introduced by the Council today, which we support.

The proposals being introduced today will go a long way towards easing the burdens created by the steady rise of punitive quality-of-life enforcement over the past two decades. This legislation will pave the way for fewer cases in criminal court and fewer people in jail solely because they are unable to pay small fines. It should also result in less paperwork and overtime for the New York Police Department. These are all good things. We thank Council Speaker Melissa Mark-Viverito, Courts and Legal Services Chair Rory Lancman, and Public Safety Chair Vanessa Gibson for their leadership in identifying these problems and seeing through to the introduction and active support of this legislation.

Unfortunately, in New York City, people are still arrested and jailed for acts like littering, drinking a beer in a park, or sleeping in a NYCHA stairwell. Over the past decade, more than 6 million summonses have been issued for the most minor of crimes, violations, and infractions, so many that the court system could barely manage. There are more than 1 million outstanding summons warrants which trigger automatic arrest upon law enforcement contact, a severe burden to both the public and to criminal justice resources. Currently Brooklyn Defender Services represents in criminal court, more than 2,000 people a year who have been arrested and held in custody for up to 24 hours and facing further penalties after being stopped and arrested for infractions and violations – not even crimes. Most of these cases involve clients who have summons court warrants or have been stopped for transit related offenses during the previous year. Despite not having committed an offense that rises to the level of a crime, our clients face jail time, evictions and even deportation because these minor infractions and violations are adjudicated in criminal court. This problem, which the Council is seeking to ameliorate with these bills, is immense, affecting literally hundreds of thousands of New Yorkers every year, mostly from communities of color, entirely because of the disparate nature with which these technically illegal acts are enforced. With this in mind, the City Council deserves substantial credit for easing the penalties for a group of New York City’s lowest-level crimes and violations.

For the past several months we have been interviewing our clients who come through criminal court on summons offenses and the results have been predictably appalling: A 48 year-old man who cut through a park on his way home from work; a middle-aged Spanish-speaking man who used his daughter’s student metro-card to enter the transit system; a young woman arrested for being in a park without a child; a 51-year-old man drinking a beer on the sidewalk outside his home; a 76-year-old man for public urination; a 21-year-old man for riding his bike against traffic. In each of these cases our clients had previous unpaid summons matters that, in general, they either could not afford to pay or did not understand fully their obligations to pay. In some cases the unpaid summonses were more than a decade old. I think it is fair to say that a night in jail is not necessarily a punishment proportionate to these behaviors, let alone the additional attendant penalties. It is these cases that the legislation introduced today will most directly affect in a positive manner. People in similar circumstances in the future will not necessarily have to worry about being brought through the criminal courts, with a threat of more jail time hanging over their head. This is a welcomed development and goes far towards aligning harm and punishment in a proportional way, avoiding the trauma of incarceration for thousands of people, reducing the risk of police encounters escalating and going a long way towards easing some of the feeling of oppression that is felt in the communities from which most of our clients come.

Another direct result of these reforms will be to free up time and space in criminal court so that more serious matters can be given the attention they require. Currently, the high volume of people brought through the system for these types of minor violations and infractions result in high arrest-to-arraignment times (sometimes up to 24 hours), longer spans between court appearances and, at times, a lack of court personnel and courtroom space for the swift adjudication of cases. The horrors the Council has heard about lengthy stays at Rikers Island and problems associated with monetary bail will also likely be impacted by this new legislation. The most positive reforms we’ve seen during the past two years have been the reductions in arrest, summons and overall police interaction numbers. These bills codify some of these current policies and will ensure that in the future there will not be a resurgence in arrests for things like being in the park after dark. These bills also send a message to the police that the

City Council will do its part of act as a guardian of the rights of the residents of this city against unwarranted over-policing.

Many technical questions regarding the implementation of these bills remain to be hammered out during the legislative process. Critically, moving these cases to civil courts removes the right to counsel guaranteed by the Sixth Amendment, which, in addition to ensuring advocacy on individual cases, also provides for an essential layer of oversight to the process. We hope that this issue will be carefully considered while the legislation is being reviewed.

In addition: Will the public be compelled to show identification to the police during interactions for these violations or risk arrest and detention? Will people have to show up to court, missing work, school or childcare responsibilities? Will there be a way people to ask for a new court date? Will there be evening hours? Can the summons forms be updated so people can readily understand them? These are just a few of the issues we are interested in hearing more about and which we are happy to share our experience to help resolve.

Looking to the future, once these bills pass, many issues highlighted to Council during previous discussions on summons reforms remain unaddressed, such as inequitable and over-enforcement.  There is more work to be done as the Council has foreseen with the introduction of the reporting bills. Again BDS is ready to assist in any way to continue a dialogue that will maximize the benefits of this legislation.

We hope the Council will consider a review of the civil penalties and will also expand the list of decriminalized offenses. Even with these welcome changes, it appears likely that tens of thousands of people will still be brought through criminal summons court each year where criminal records, jail and even deportations await. For those lucky enough to have civil court adjudication, punishments may still be out of line with offenses. A $250 fine, while it might seem reasonable to Council Members and staff, is a major sum for people living paycheck to paycheck, and can be the difference between feeding their families or going hungry, paying rent or becoming homeless. Civil judgments ruin credit scores and, like arrests and criminal court involvement, saddle our clients with permanent punishment. If the police are going to be involved at all, the preference – for all of these violations – should be to ask people to stop what they are doing in the first instance.

The NYPD Commissioner has insisted that without police involvement there will be no way to actually force people to behave, but a growing body of evidence, backed up by our own decades of experience in the field, shows that accountability is not asked of everyone in an equitable way. Demographic groups already under siege from a host of structural issues in the city, from housing to healthcare to employment, are typically held to a higher level of accountability than other groups, especially with regards to the minor infractions under discussion today. The Council plan – as Public Safety Chair Vanessa Gibson acknowledged Friday as a guest on WNYC – does little to address the inequitable, if not outright discriminatory enforcement of these violations. Black or Latino New Yorkers received at least 81 percent of summonses issued between 2001-2013, including 90 percent of littering offenses and 93 percent of spitting offenses. Moving these cases to civil court does not eliminate the problem. Any court system, civil or criminal marked by such obvious racial bias will suffer from a lack of legitimacy in the eyes of those people it is meant to control.

We would again like to thank the Council for moving definitively to address these issues, which are central to the fair administration of justice in our City and for extending to us the opportunity to comment on the bills introduced today. We look forward to remaining engaged with the Council as these bills move through the legislative process.

BDS TESTIFIES BEFORE NYPD ON PROPOSED RULES FOR U VISA CERTIFICATION REQUESTS

TESTIMONY OF:

Zoey Jones – Immigration Attorney

BROOKLYN DEFENDER SERVICES

Presented before

The New York Police Department (NYPD)

Public Hearing on

Police Department U Visa Certification Proposed Rule

January 12, 2016

My name is Zoey Jones. I am a practicing immigration attorney at Brooklyn Defender Services (BDS). BDS provides innovative, multi-disciplinary, and client-centered criminal, family, and immigration defense, as well as other civil legal services, social work support and advocacy, for 40,000 clients in Brooklyn every year. I thank the NYPD for the opportunity to testify about the proposed rule on NYPD U visa certification.

Since 2009, BDS has counseled, advised or represented more than 6,500 immigrant clients.  In 2015 alone, we handled more than 1500 immigration matters across a full spectrum of services. We defend detained clients facing deportation, clients identified through our criminal and family defense dockets, and clients referred from our community partners or who connected with us through community outreach clinics.

We commend the NYPD and Commissioner Bratton for proposing rules on the U visa certification request process. We look forward to collaborating with the Department to ensure that New York’s immigrant residents feel empowered to work with the NYPD to protect themselves and their communities from victimization.

We believe a streamlined process like the one articulated in the proposed rules will help to ensure that a greater number of deserving applicants are able to obtain the immigration relief that they are entitled to under the law.

We hope that any adopted rules will serve to expedite NYPD responses to requests for certification and increase transparency about the decision making process. However, we believe that there is room for clarification in the rules. This testimony identifies additional considerations for the rulemaking committee, including creating an expedited response process for detained immigrants, ensuring that decision makers clearly articulate a reason for denials, and fostering greater transparency throughout the process.

Expediting NYPD Responses for Detained Immigrants

A 45-day decision rule like that articulated in §22-03 would be a vast improvement over the current processing timeline. Our office submitted certification requests nearly a year ago in a number of cases for which, as of the date of this testimony, we have yet to receive a response. Delay in the issuance of U visa certifications creates great uncertainty for many parties involved in the immigration system, including courts, judges, attorneys and immigrants.

This uncertainty is most prejudicial to individuals who are detained by Immigration and Customs Enforcement (ICE). For detained immigrants, prompt receipt of a U visa certification can mean the difference between continued residence in New York City and deportation.

Immigration judges are under no obligation to grant indefinite adjournments to individuals awaiting U visa certifications, regardless of the extent or importance of his or her cooperation with law enforcement.  To the contrary, immigration judges are under constant pressure—created by both immigration prosecutors and severe immigration court backlogs—to resolve cases quickly. The law enforcement certification is the first step in the lengthy U visa application process – a U visa application cannot be filed without a certification. If a detained immigrant cannot obtain a decision on a U visa certification promptly enough to satisfy the immigration court, this delay could result in that individual’s deportation.

The Department can play an important role in limiting unnecessary and harmful detention and deportation by responding promptly to requests for certification from detained immigrants, in particular.

We believe that the Department should create a streamlined process for immigration detainees that would allow their cases to take priority over other persons requesting certification. Individuals requesting certifications from the Department should specify in their letter requesting certification whether they are a detained immigrant, and requests submitted by detained immigrants should be given priority. This would allow the NYPD to allocate resources in the most efficient manner possible.

We hope to collaborate with the Department to ensure the NYPD U visa certification team has the necessary resources to process requests efficiently. We are cognizant of the high volume of cases that our criminal and immigration courts process on a daily basis. We would welcome the opportunity to sit down with your staff to determine how legal service providers can help to facilitate prompt responses to certification requests, particularly in the case of detained immigrants facing deportation.

Reasons for Denials

We applaud the proposed rules for mandating that “[i]f the request is denied, the Department will also notify the applicant of the basis for the denial and the process for appealing the denial (“Department denial letter”).” Proposed NYPD Rule §22-03. The creation of an appeals process is also promising.

The following cases illustrate the need for a more thorough explanation of the denials of certification:

  • Denise was a victim of domestic violence in 2003. Denise reported the crime and her partner was arrested but he failed to appear in court. Our office initially made a request to the NYPD for certification but Denise’s request was denied because there was an arrest. We were instructed to make the request to the District Attorney’s Office. BDS made a request to the District Attorney, who rejected Denise’s request for certification because they could not find the file. The D.A. referred our office back to the NYPD. Our office then made a second request to the NYPD. The Department’s denial letter merely stated “statute of limitations.”

An appeals process will be useful in challenging a denial such as the one in Denise’s case. However, the initial denial letter should be sufficiently clear so as to allow the applicant or her attorney to challenge the denial, where appropriate, or accept the denial without pursuing a fruitless appeal.

In other cases, we believe that our clients’ certification requests have been denied because of their criminal records. It is our position that it is more appropriate and more efficient to allow the Department of Homeland Security to determine when denial of a U visa is appropriate based on the applicant’s criminal record, rather than refusing to issue law enforcement certifications due to criminal convictions.

The instructions for the law enforcement certification (Form I-918, Supplement B) state: “You should use Form I-918, Supplement B, to certify that an individual submitting a Form I-918, Petition for U Nonimmigrant Status, is a victim of certain qualifying criminal activity and is, has been, or is likely to be helpful in the investigation or prosecution of that activity.” The law enforcement certification form does not request information concerning the applicant’s criminal record, and the instructions do not request that the certifying agency consider the applicant’s criminal record when determining whether to issue a certification.

This is likely because a U visa applicant’s criminal record, if one exists, will always be carefully scrutinized by the Department of Homeland Security, U.S. Citizenship and Immigration Services, before a decision is made about whether to grant a U visa. As part of the U visa application, the applicant is required to disclose all arrests and submit documentation proving the outcome of each arrest. U visa applications are routinely denied due to the applicants’ failure to submit all required criminal documentation, or due to the nature and/or extent of the applicant’s criminal record.

For these reasons, we encourage the Department not to deny certification requests based on the applicant’s criminal record.

Increased Transparency

The current U visa certification process lacks transparency. The proposed rule takes steps towards making this process more transparent, but we believe the Department can go further.

The Department should publish its internal policies and procedures related to the Department’s decision whether or not to certify a crime victim’s cooperation with law enforcement. For example, if the policy is that applicants must first seek certification from the prosecutor if the case proceeded beyond an arrest, then that information should be publicly available. Then legal service providers will not waste the Department’s time and resources making a request without first seeking certification from the District Attorney. In cases such as that of Denise, where the District Attorney advised the victim to seek certification from the NYPD, the applicant may they make the request from the NYPD at the request of the D.A.

Most important, legal service providers who are well versed on the complex nuances of the law should be invited to speak with the NYPD to help the Department to craft internal policies and procedures that would ensure the most efficient and just outcomes in every case.

Further, it would be enormously helpful to all parties involved if the NYPD would provide on its website a contact phone number and email address for a point person at the Department on this issue. The current guidelines list only the address for the Domestic Violence Unit. This lack of information makes it nearly impossible for attorneys and immigration court personnel to inquire about the status of an immigrant’s request for certification. As noted above, this would be enormously helpful to backlogged immigration courts (who could schedule court dates for after the date when the NYPD expects to respond to the request) and immigrants themselves who are making difficult decisions about whether or not to continue fighting deportation.

Conclusion

BDS is grateful to the Department for seeking to clarify the U visa certification process. We make the following recommendations that we think would help to facilitate the process:

  1. Create an expedited processing timeline for certification applicants in immigration detention.
    • Allow applicants to designate in their letter whether they are a detained immigrant.
    • Work with legal service providers to ensure that immigration detainee requests for law enforcement certifications are processed efficiently.
  1. Provide more thorough explanations for denials that would allow immigrant applicants to better understand if they should appeal, and not deny certification requests due to the applicant’s criminal record, as this record will already be thoroughly scrutinized by the Department of Homeland Security before a decision is made about whether to grant a U visa.
  1. Increase transparency in the certification request and decision making processes:
    • Publish the Department’s internal policies and procedures that guide decisions as to whether or not to deny an applicant’s request for certification after input from legal service providers about whether said policies comport with state and federal law.
    • Invite legal services providers to collaborate with the Department to inform the NYPD’s internal policies and procedures.
    • List a phone number and e-mail contact information for the U visa coordinator on the Guidelines for Requesting Law Enforcement Certification for “U” Visas document available on the Department website.

Thank you for your time and consideration of these important issues. BDS looks forward to working with the NYPD to ensure that immigrant communities feel empowered to assist the Department in making New York City safer for everyone.

BDS TESTIFIES BEFORE COUNCIL ON NEED TO REFORM NYCHA’S PERMANENT EXCLUSION POLICY

TESTIMONY OF:

Sergio Jimenez – Director, Civil Justice Practice

BROOKLYN DEFENDER SERVICES

Presented before 

The New York City Council Committee on Public Housing

Oversight Hearing Examining NYCHA’s Compliance with HUD’s Admissions Regulations and New Permanent Exclusion Policy

December 15, 2015

My name is Sergio Jimenez and I am the Director of the Civil Justice Practice at Brooklyn Defender Services (BDS). Our organization provides innovative, multi-disciplinary, and client-centered criminal defense, family defense, immigration, civil legal services, social work support and advocacy to more than 40,000 indigent Brooklyn residents every year. I thank the New York City Council Committee on Public Housing, and in particular Chair Ritchie Torres, for the opportunity to testify on New York City Housing Authority’s (NYCHA) Permanent Exclusion policy.

BDS is fortunate to have the support of the City Council, as well as other elected officials and the Office of Court Administration, to supplement the services we provide as the public defense office in Brooklyn for people who have been arrested, those who are facing child welfare allegations, and those who are facing deportation. Through both legal advocacy in court and direct advocacy with various agencies, we assist people in fighting evictions, maintaining their public benefits, staying in school, keeping their jobs, and protecting their consumer rights. Our Civil Justice Practice aims to reduce the so-called collateral consequences for low-income people who have had interactions with the criminal, family or immigration justice systems. We also assist criminal defense attorneys and their clients by identifying potential civil ramifications of guilty pleas and strategizing ways to minimize the risk of eviction, loss of employment, and educational consequences as a result of a criminal conviction. We serve many clients who might otherwise be left to navigate these challenges alone. Finally, in addition to our in-house work, we engage with the community and hold external educational clinics in close partnership with community-based organizations and elected officials.

The Need to Reform NYCHA’s Permanent Exclusion Policy

There are many ways in which residents of NYCHA live a Tale of Two Cities. Nearby schools are often very segregated. Urgent repairs in public housing are subject to long delays with no meaningful accountability, while private landlords face enforcement action from the City. And while the New York City Council is working to lift people out of the homelessness crisis and expand affordable housing options, NYCHA instead plans to take away more people’s housing of last resort[1] through more aggressive eviction actions and increased use of Permanent Exclusion.

While the Permanent Exclusion policy might be well-intended and arises from the legitimate concerns of many residents and agency officials, it is among the starkest examples of our government’s counterproductive approach to crime and social problems.

There is no evidence or indication that increasing evictions—and exacerbating our City’s homelessness crisis—improves public safety.

Recent statements by the Administration, the report by the New York City Department of Investigation, and media reports all apparently presume the efficacy of evictions in reducing crime; none have provided any justification for this approach.

Recommendations:

  • NYCHA should end the exclusion of New Yorkers except in the most serious cases, in which residents or prospective residents in question present a clear threat to the physical safety of their neighbors.
  • NYCHA should immediately cease excluding residents based on arrests, after which a person is supposed to be presumed innocent, and instead limit criteria for exclusions to those required by federal law, or at least to serious felony convictions that are balanced against mitigating factors.
  • Youth under the age of 21, seniors, and those with intra-household caregiver relationships should never be evicted from their homes for an arrest or conviction. If necessary, NYCHA should provide for the transfer of the entire household to another apartment to resolve conflicts in a particular building. 

Background

As you may know, federal law requires public housing authorities to evict and exclude people from admission based on certain limited criteria, including those convicted of “drug-related criminal activity for [the] manufacture of methamphetamine on the premises of federally assisted housing” and those subject to lifetime inclusion in State sex offender registries.[2] While those are the only two mandatory exclusions, NYCHA has created a discretionary model that builds on these criteria and excludes people arrested—not convicted, but arrested—even for low-level, non-violent offenses, regardless of the dispositions of their cases.

Arrests do not tell us anything about a person. First and foremost, that person is presumed innocent unless convicted, and thus any statutory consequence in public housing calls for questions of constitutionality. Secondly, in New York, many targeted communities, particularly people of color, find interactions with law enforcement to be a regular occurrence, despite no wrongdoing. This is especially true in public housing, where police officers regularly question residents’ right to be in their own buildings. Moreover, despite recent reforms, our City, State, and Country continue to rely on over-policing, mass incarceration and long-term supervision in lieu of effective policies and programs to address mental illness, poverty, addiction, homelessness, and widespread invidious discrimination. These issues disproportionately impact NYCHA residents and their families. For example, the ongoing war on drugs continues to ensnare large numbers NYCHA residents and their family members. Likewise, the high unemployment rate among public housing residents—only 47.3% of families have one or more employed member[3]—tells us residents are particularly vulnerable to arrest for crimes of poverty, such as turnstile jumping or petit larceny. In fact, an estimated 7.1 million people in New York State, or 36%, have RAP sheets. This statistic exemplifies the enormous reach of the dragnet of our criminal justice system. As a society, we must not define people by their criminal histories. As a property owner and residential dwelling manager, NYCHA should not evict them on such a discriminatory basis.  This is particularly true given that NYCHA has been found to be “housing of last resort,” both by the courts and by the public.

Housing as a Matter of Justice and Public Safety

Many NYCHA residents are understandably frustrated by higher crime rates in their developments relative to the City at large, and as community leaders, Council Members are best positioned to facilitate an honest, intergenerational conversation about evidence-based approaches to public safety. Stable housing and healthy support networks are two key elements in any person’s ability to overcome the multifaceted challenges of being poor in New York. Housing is essential to educational continuity, finding and keeping jobs, adhering to physical and mental health care regimens, and accessing critical services including drug rehabilitation and therapy, all of which impact crime rates and recidivism. Likewise, robust support networks help us get by and hold us accountable. Both are shattered by NYCHA’s exclusion policy, which pushes individuals into shelter and tears apart families upon threat of evicting their entire household. This remains true when, as Commissioner Bratton stated in July of 2015, NYCHA is seeing a historically low level of crime.

The lack of viable housing options that is endemic to our city results in increased rates of crime and recidivism, and taking housing from those who have it only exacerbates this problem. Our City and State criminalize poverty in general and homelessness in particular. People are sent to Rikers at a cost to taxpayers of more than $500 per day for skipping a $2.50 fare they likely cannot afford. They are arrested for “feet on the seat,” often for sleeping on the train, or trespassing for sleeping in a stairwell. However, the displacement and marginalization caused by NYCHA’s exclusion policy can also lead to more serious crimes that impact public safety. For example, disruptions in psychopharmacological drug and therapy regimens, which are extremely difficult to follow while moving from shelter to shelter at irregular hours, can lead to violent incidents. Helping people stay in their homes is thus a matter of public safety.

The following client story exemplifies the problem:

Ms. C

BDS’ Criminal Defense Practice picked up Ms. C’s case following a single alleged purchase of drugs from her apartment. She was arrested more than a year after the incident, despite a statement by the confidential informant that described someone three inches taller and about fifty- seventy pounds heavier.  Ms. C was released on her own recognizance and her charges have been progressively reduced as her case is going on its third year.  Our office expects a full dismissal when the case is fully litigated.  However, during the course of the determination of this criminal matter, NYCHA brought a termination of tenancy proceeding based on the allegations. Ms. C will not be able to defend herself at NYCHA without considerations to her criminal case, which places her housing of last resort in jeopardy. After bringing the initial charges, NYCHA is now threatening an additional charge that Ms. C’s brother, who suffers from mental illness, had a criminal record. There have been no incidents of violence through the entirety of Ms. C’s tenancy but now, Ms. C will have to make another terrible choice: risk her family’s housing or permanently exclude her extremely vulnerable brother.  Asking families to make these choices as a result of questionable, non-violent allegations runs counter to the values espoused by HUD in their latest efforts at facilitating re-entry of tenants into NYCHA.

Real Reform

There are many ways to improve the process by which exclusions and evictions are determined. Residents sometimes unknowingly agree to prohibit a family member from ever visiting their apartment—a disturbing occurrence that NYCHA will not let them fix. They usually go through the proceedings pro se (without representation). They deal directly with NYCHA’s prosecuting attorneys, as opposed to receiving a hearing with an impartial officer, without being informed of the attorneys’ role in the matter. Those with limited English proficiency do not receive adequate translation services. Troublingly, these agreements are five pages of legalese, which are often not thoroughly explained to tenants agreeing to them. Certainly, providing additional funding for civil legal service providers to represent every NYCHA resident facing termination proceedings and providing robust translation services would improve case outcomes. Already, the Council provides funding for pro se help by funding Housing Court Answers to set up information booths, which deserves praise. That said, the mere fact that NYCHA is planning to reinstate its public “Not Wanted List” should be a clear indicator to the Council that this policy is informed by stigma and not sound judgement. Simply improving the process is insufficient. The primary driver of reform should be dramatically reducing the number of people forced from their homes through changes in NYCHA policy to make eviction an absolute last resort.

Conclusion

The soaring rates of poverty and homeless in New York are, at best, deeply problematic. Certainly, as one of the wealthiest cities in the world, we can do better. We are in crisis. Indeed, many of New York’s elected and appointed officials in every level of government consider expanding housing opportunities to be among their top priorities. Yet NYCHA’s opaque and lop-sided exclusionary policies are an anomaly that endures only because of a misunderstanding about what makes us safe. Given the adverse impacts of unstable housing on individuals, communities, and our city as a whole, I respectfully urge Council Members to follow the federal government’s recent example and work to expand re-entry in public housing authorities. This effort would require initiating conversations with the public housing communities in your districts about the broad-based exclusion of fellow residents, including those who have made mistakes, and helping to empower those who have been directly impacted by this policy to help lead the fight for reform.

[1] Matter of Featherstone v Franco, 269 AD2d 109, 111 [dissenting mem]; see also, Matter of Sanders v Franco, 269 AD2d 118; Mireya Navarro,

As NewYork Rents Soar, Public Housing Becomes Lifelong Refuge, The New York Times (Aug. 3, 2015) available at  http://www.nytimes.com/2015/08/04/nyregion/as-new-york-rents-soar-public-housing-becomes-lifelong-refuge.html

[2] 24 CFR § 960.204

[3] http://www.nyc.gov/html/nycha/downloads/pdf/res_data.pdf

BDS TESTIFIES BEFORE COUNCIL HEARING ON ABUSE AND MISTREATMENT OF WOMEN IN CITY JAILS

TESTIMONY OF:

Kelsey De Avila – Social Worker, Jail Services

BROOKLYN DEFENDER SERVICES

Presented before

The New York City Council Committees on Women and Fire, Correction, & Criminal Justice

Oversight Hearing Examining the Unique Issues Facing Women in City Jails & Intro 0899-2015

A Local Law to amend the administrative code of the city of New York, in relation to requiring the Department of Correction to report on the Rikers Island nursery program.

December 15, 2015

My name is Kelsey De Avila and I am a Social Worker in the Jail Services division at Brooklyn Defender Services.  Thank you for this opportunity to address the Council.  My testimony will address a range of issues which impact our female clients who are incarcerated at the Rose M. Singer Center (RMSC, or “Rosies”) on Rikers Island, including a number of problems related to the nursery program.  We support the adoption of intro 0899, and encourage the Council to go even further in its oversight of the women’s jail.

Presently, our city jails fail to provide services to address the multitude of issues that specifically impact women.  When compared to their male counterparts, our female clients who are incarcerated are more likely to suffer from a mental illness (recently more than 70%) and chronic medical conditions; they are more likely to be unemployed or underemployed; they are much more likely to have histories of trauma and to be survivors of sexual and physical abuse; they are more often the primary caretakers of children while in the community; and horrifyingly, they are much more likely to experience sexual abuse while incarcerated.  Rather than receiving targeted services and programming to address these serious and wide-ranging issues, our clients at Rosies frequently experience triggers of Post-Traumatic Stress Disorder and new traumas. Notably, the bulk of the top charges that bring women into contact with the criminal justice system may be related to histories of drug and alcohol addiction – a clear indication that the War on Drugs continues to wreak havoc in the lives of the clients, families, and communities we serve.

The programming that is available at Rosies is inconsistent and poorly promoted – most of our clients report learning about available programs through word-of-mouth. Programs may also be inaccessible for many women because they are only offered in certain units, or require an escort.  Escorted movement throughout the jail may be wise to ensure safety, however, chronic understaffing means that escorts are often unavailable, limiting access to programming, medical and mental health care, and delaying counsel visiting.

Visiting

The visiting room at Rosies includes space for women to play with their children.  However, this room is open at the discretion of the officer, which means not every mother and child have the opportunity to use it.  To add, for the last several months, water has been leaking from the ceiling gathering in a putrid puddle, molding toys and books, and rendering the space unusable.  Despite offers from Hour Children to replace toys and beautify the space, the Department has failed to fix the leak or repair the room.  Instead, DOC has exerted significant resources pursuing rule changes which would limit contact between incarcerated women and their families.

Staff Sexual Abuse

Sexual abuse by staff of women at Rosies has become endemic and must be an urgent priority of the council. According to court documents filed by Public Advocate Letitia James, your Department of Correction has failed to transmit reports of sexual assault to the NYPD for investigation in 114 of 116 cases, including 61 that were allegedly carried out by Rikers staff, which is disturbing and shameful. Our jails should be subject to oversight which go above and beyond the Prison Rape Elimination Act (PREA): camera coverage should be expanded and include particularly dangerous places like transport buses; meaningful investigations must take place immediately; staff must be held accountable promptly; and most importantly we need to ensure the protection of the survivor.

Pregnant and Incarcerated

One of our clients is a 16 years old sharing a cell with a pregnant woman.  The pregnant woman was in pain and asked our client to get her some water.  The officer told our client that the pregnant woman needed to do it herself.  The officer did not use the opportunity to get help or alert medical staff.  Instead, an argument arose and our client received a ticket, or infraction, for disrespecting staff when she advocated for this woman to get attention.  Officers need to be properly trained to work with pregnant women; we can’t allow this kind of mistreatment towards people to go unnoticed; pregnant women should be housed together to ensure better access to programs, medical attention and other resources.

New Mothers

With regard to the Nursery unit, we echo the comments and testimony offered by others including the Legal Aid Society and Hour Children.  Maintaining parental bonds is essential to the well-being of children and mothers alike, and the positive impacts will be felt beyond the jail in communities throughout the city.  The Nursery program is an opportunity for women to receive parenting resources and support, which should continue for both the mother and child after the program.

We are encouraged by reports that denials to the Nursery have slowed, however, we are hopeful that the provision in Int 0899 requiring reporting on reasons for denials will eventually yield greater approval rates.  One major criterion for denial is previous ACS involvement.  Based on our experience representing parents in Family Court, we know that the range of allegations constituting “abuse and neglect” is extraordinarily broad and should not be grounds for denial.  For example, having had a dirty house has no relationship to one’s ability to parent in the nursery setting.  Timeliness of application processing should also be scrutinized, and should be included in the bill. Applications for placement to the nursery should not take months to process, as has been the case in the past. Such delays are contrary to the very purpose of the program, namely to maintain mother-child bonds.  The issue is not solely one of facility capacity; the Nursery can hold up to fifteen women, and on my last visit, held only four.

We recently represented a client who had a 6 month-old child and was breast feeding at the time of her arrest.  She was incarcerated pre-trial and was not told by DOC how long she and her child would be separated before being approved to co-reside at RMSC.  We’ve received information from DOC staff that the approval process can take up to four months.  There should be little to no gap of separation from a mother and their child.  Such separation can be damaging to the child’s development and dangerous to a mother’s mental health. Among the many risks is the onset of post-partum depression, which First Lady Chirlane McCray has described as a major concern for this Administration. We also know the positive benefits breastfeeding has on the mother and child. The New York City Department of Health and Mental Hygiene recommends it and offers support to breastfeeding women in the community, yet DOC apparently does not make it a priority. The approval process needs to be expedited and the presumption should be to allow women and their children to participate, unless they present a serious threat to physical safety.

Mother-child bonding does not cease to be important on the child’s first birthday, yet the Nursery Program is only available during this first year of infancy.  The Nursery Program should be expanded to allow children to remain with their mothers through their entire infancy as is permitted in several state prison systems, or even longer – through their pre-school years – as is permitted in many other countries’ correctional systems. At the very least, mothers who are serving sentences at Rosies that only exceed their young children’s birthdays by a few months should be allowed to stay in the program to prevent separation prior to re-entry.  Additionally, the Council and the Administration should dedicate more resources to mothers in the community, including by investing in re-entry assistance, parental support, education, and job-placement assistance for mothers who come into contact with the criminal justice system.

Illegal and Unconscionable Shackling of Pregnant Women

Finally we implore the Council to immediately require that the Department adhere to existing state law (Correction Law 611) prohibiting shackling of pregnant women.  Currently, pregnant women who are taken to community hospitals for treatment are shackled at their wrists and ankles, with chains around their waists.  Even when women receive abdominal surgeries, they are shackled at the hospital and during transport.  This practice is illegal, inhumane and unnecessary, and poses extreme risk to the health of the mother and her pregnancy.

Conclusion

The Council has a responsibility to ensure the safety of all New Yorkers.  The abuse and particularly the sexual violence taking place in the jails is an emergency and it is unacceptable.  Platitudes like “reform takes time” are an insult to people and families who are suffering now. The vast majority of the women at Rosies simply should not be in jail – they are there simply because they are too poor to pay bail.  To expose these women to a regime of sexual violence and abuse simply because they are poor is so morally abhorrent as to shock the conscience.  The Council should prioritize access to services, alternatives to incarceration, and an end to pre-trial detention in all but the most serious cases.

Thank you for your consideration of my comments.

News

SUPPLEMENTAL BDS TESTIMONY BEFORE BOARD OF CORRECTION OPPOSING JAIL VISITING RESTRICTIONS & ROLLBACK OF SOLITARY CONFINEMENT REFORMS

November 6, 2015

New York City Board of Correction

1 Centre Street

New York, NY 10007

Dear Chair Brezenoff and Members of the Board,

Brooklyn Defender Services appreciates your consideration of the comments below as part of the record related to rulemaking regarding visiting, solitary confinement, packages, and Enhanced Supervision Housing. This letter intends to respond to the prepared testimony of Commissioner Ponte dated October 16, 2015, but not made public until after the public comment period had closed.  This letter does not reflect a complete record of our concerns and should be considered supplemental to our previous testimony.

In the interest of brevity, this letter will not reiterate in detail the concerns raised by the Legal Aid Society and the Jails Action Coalition in their letters dated October 27, 2015 and November 2, 2015 respectively.  We share the serious concerns raised in those letters regarding the grave implications for civil liberties, the procedural barriers for adequate public comment, as well as the detailed concerns regarding the proposed rule changes themselves.  We would like to focus our comments on the important role of the Board of Correction in our city, and ask you to remember this role as you consider the proposed rule changes.

New York City is fortunate to have the Board of Correction to oversee its jails.  In most jurisdictions, jails and prisons operate without oversight, and people suffer.  With unfettered access to the jails and authority to establish Minimum Standards independently of the Department of Correction, the Board plays a critical role in mitigating the harm suffered by people who are incarcerated in New York City.  New Yorkers should benefit from a Board who champions its independence and prioritizes the rights of incarcerated New Yorkers and their families.  The Board was established in the shadow of Attica to help our city be more humane, more just, and more democratic – to move our jail system closer in line with the values which define our city.

For the first time in history, criminal justice, incarceration, and Rikers Island in particular, are the subject of unprecedented public scrutiny.  At this moment, your independence is crucial. Earlier this year, the Board took major steps to recognize the dignity of the people held in New York City Jails by acknowledging the harm of solitary confinement and limiting its use in our city.  We urge you to continue in the right direction, toward an approach to violence reduction which prioritizes the dignity and rights of New Yorkers as foundational.

Throughout the rulemaking process, the Department has described their view of visiting and packages in comforting terms, noting how important visits are, and how they plan to deliver essential items to people through the uniform system.  But the Department’s actions have fallen far short of their promises, to detriment of the people in their care and their families.  Our office has submitted several complaints to the Board regarding the rollout of uniforms including about clients coming to court without warm clothing, being deprived of medically-ordered shoes, being denied trial clothing, being forced to wash their clothing in sinks, and about many people returning to the community in their uniforms. Each and every time someone is deprived of such a fundamental need, their dignity is violated.

Our Jail Services Social worker is a part of the Visit Committee, and has described to you in a recent letter and prior testimony how the Department has taken no concrete action to improve visiting, or provide the Committee with data.  As a result of the lack of urgency on the part of the Department to address the horrifying conditions for visitors, families and children who visit the jails continue to be humiliated by invasive searches, intimidating dogs, rude staff, and interminable waits in order to see their loved ones.  This process is devoid of dignity for the tens of thousands of people who visit the jails each year – innocent New Yorkers just like you.

As we have stated many times, we are deeply concerned about violence in the jails, and the safety of our clients as well as correctional staff.  Conditions in city jails which are contrary to human dignity foment resentment and violence.  We believe that the solution to violence is founded on restoring respect for the human dignity of the people held in our jails and their families. The Board should invest its resources in monitoring compliance with existing minimum standards as a first step to preserve basic human dignity. We urge you to push our jails to reflect the values we share, and resist any movement in the opposite direction. Thank you for your consideration of our supplemental comments.

Sincerely,

 

Riley Doyle Evans

Jail Services Coordinator

Brooklyn Defender Services

BDS TESTIFIES AT COUNCIL HEARING ON RESOURCES AVAILABLE FOR UNACCOMPANIED MINORS

TESTIMONY OF: 

Kathrine Russell – Immigrant Youth and Community Project Team Leader

&

Amy Albert – Adolescent Representation Team Coordinator

BROOKLYN DEFENDER SERVICES 

Presented before

The New York City Council Committee on Immigration

Oversight Hearing on

Resources Available in New York City for Unaccompanied Minors

December 9, 2015

My name is Kathrine Russell. I am a practicing immigration attorney and the Immigrant Youth and Communities Project Team Leader at Brooklyn Defender Services (BDS). I testify today along with my colleague Amy Albert, a criminal defense attorney at BDS and the Brooklyn Adolescent Representation Team Coordinator. BDS provides innovative, multi-disciplinary, and client-centered criminal, family, and immigration defense, as well as civil legal services, social work support and advocacy, for 40,000 clients in Brooklyn every year. We thank the City Council Committee on Immigration for the opportunity to testify about resources available to immigrant youth in New York City.

Since 2009, BDS has counseled, advised or represented more than 6,500 immigrant clients.  In 2014 alone, we handled 1,273 immigration matters across a full spectrum of services. We defend detained clients facing deportation, funded by the New York Immigrant Family Unity Project (NYIFUP), clients identified through our criminal and family defense dockets, and clients referred from our community partners or who connected with us through community outreach clinics. Since its launch in 2012, with generous funding support from City Council, our Immigrant Youth and Communities Project has represented more than 450 young clients in their pursuit of Special Immigrant Juvenile Status (SIJS), Deferred Action for Childhood Arrivals (DACA), U visas, employment authorization, and other immigration benefits or removal defense.

Our Immigrant Youth and Communities Project clients take advantage of BDS’s multi-disciplinary defense services, including our Adolescent Representation Team, our civil justice project, our education advocacy team, youth social workers and youth advocates.

BDS’s integrated Brooklyn Adolescent Representation Team (BART) is comprised of criminal defense and immigration attorneys and other advocates working together to understand the myriad issues unique to adolescents (21 years of age and under) and provide services that meet their needs. BART clients may take advantage of education advocacy services provided by our two dedicated education attorneys and education social worker. We also have youth advocates who serve as mentors to our young clients, escorting them to court and to appointments and checking up on them regarding school and program attendance. Our specialized BART social work team is dedicated to the issues facing young people who are arrested, including mental health issues, trauma, and addiction. BART clients with immigration issues may also take advantage of our civil justice project and access housing, benefit and other civil legal services.

BDS is grateful to City Council for its generous support of youth and immigrant families in New York City. Our experience shows that defender offices are in a unique position to connect clients from criminal, immigration, and family court cases to ensure better outcomes for our clients and their communities. However, we believe there is still more work to be done that requires the assistance of City Council.

The following true story of a BDS client is illustrative of the challenges that our young clients face:

“Anabel” is a 16-year-old young woman from Trinidad who has lived in the United States off and on since she was seven years old.  Most recently, in 2014, Anabel came to the U.S. as an unaccompanied child, seeking to escape severe violence in the community where she and her mother had been living in Trinidad.  Unfortunately, the visa that Anabel used at the airport was expired, and Anabel was apprehended, detained, and placed into immigration removal proceedings.  She was eventually released from custody to the care of her aunt and uncle in Canarsie, and BDS assumed representation of Anabel in her removal proceedings following a referral from Kids in Need of Defense (“KIND”).  BDS identified Anabel as eligible for Special Immigrant Juvenile Status due to abandonment and neglect by her father in Trinidad. When Anabel’s relationship with her aunt later deteriorated, BDS met with Anabel who expressed a desire to move in with a friend of her mother’s in Flatbush. Unfortunately, that relationship also deteriorated quickly after a dispute over photos that Anabel posted on Facebook.  In fact, it deteriorated so quickly that I, as Anabel’s attorney, was put in the position of trying to find an immediate home for Anabel, who was then still just 15 years old.  Fortunately Anabel had another family member in Brooklyn who was willing to take her in, but Anabel had no one willing to help her move.  At 8 p.m. on a Wednesday night, I accompanied Anabel to the home of her former caretaker, loaded and paid for a van to help her transport her belongings, and helped her move into the home where she is now staying.  I am now planning to represent Anabel in family court so that this other family member may seek guardianship of Anabel, but I am very concerned that Anabel may experience homelessness again very soon.  Additionally, when Anabel started having problems at school following two assaults by her classmates that resulted in a concussion, BDS arranged for one of its own education attorneys to speak with Anabel about her options regarding school safety transfers.  BDS also submitted a request to the Kings County District Attorney’s Office for certification for a U-visa based on the assault.  Further, because of the instability that Anabel has experienced in the U.S., BDS referred Anabel to the Young Center for Immigrant Children’s Rights, which recently appointed a “child advocate” to meet regularly with Anabel to assess her best interests.  BDS will continue to represent Anabel throughout her immigration removal proceedings and until she receives lawful status in the U.S. and to make referrals for services as necessary.

Anabel’s story is not atypical for our clients. Perhaps what is most troubling about her story is that it highlights a reoccurring issue for our youth clients: persistent homelessness.

1. Fully fund Runaway and Homeless Youth crisis shelter beds in every borough, particularly in Brooklyn

Homelessness is one of the greatest challenges that our young immigration clients face.[i] Immigrant youth are particularly vulnerable to homelessness after cultural clashes with their families, as illustrated in Anabel’s case in the repeated disputes with family members about facebook posts. When youth are kicked out of the home they have very few options because many are unprepared to live independently, have limited education and no social support. These realities are particularly salient for recent immigrants.

There is a severe need for shelter options for adolescents in New York City. The New York City Department of Youth and Community Development (DYCD) runs a range of services for Runaway and Homeless Youth (RHY), including short-term crisis shelters which house youth for up to 30 days, with the opportunity to extend for an additional 30 days. DYCD also funds Transitional Independent Living (TIL) housing. TILs provide housing for up to 18 months to RHY ages 16 to 20 and any dependent children, with a possible 6-months extension granted by DYCD. The City fails to provide either sufficient crisis shelter beds or TIL housing.

Brooklyn currently has zero crisis shelter beds for teens like Anabel. DYCD funds only two crisis shelters that serve all youth under 21, Covenant House and Safe Horizon Streetworks Overnight, both in Manhattan. Covenant House, near Times Square, is the largest and has about 200 shelter beds and another 140 spots for longer-term residential stays. The shelter serves youth age 16-21 and turns away about 75 people a month.[ii] Safe Horizon, located in Harlem, offers only 24 beds. There are other limited crisis shelter options for LGBTQ youth, victims of sex trafficking, and pregnant and parenting young mothers.[iii] Unfortunately, the majority of our immigrant youth clients do not meet these criteria.

Instead, too many of BDS’s young clients live in the streets, “couch surf” or sleep on the floors or couches of friends, neighbors or even strangers. Indeed, homeless youth are more likely to be arrested, engage in criminal activity to meet their survival needs, or engage in unsafe sexual relationships or the commercial sex trade because they need a place to sleep. A 2013 study by Covenant House and Fordham University found that 1 in 4 of the surveyed homeless youth became a victim of sex trafficking or was forced to provide sex for survival needs, such as food or a place to sleep. Of these young people, about half reported that the number one reason they had been drawn into commercial sexual activity was because they did not have a safe place to sleep. The City must do better to provide safe shelter space for youth in the communities that they live in so that they do not end up in these situations.

We urge the members of the Committee on Immigration to work with your colleagues at City Council to address the youth homeless crisis by establishing and funding crisis beds in all of the five boroughs, especially Brooklyn.

2. Eliminate barriers to the use of the Destitute Child Act

In 2012, New York State passed the Destitute Child Act, which amended the Family Court Act and Social Services Law to define a destitute child as:

  • A child who is under the age of 18 years and absent from his or her legal residence without the consent of his or her parent(s), legal guardian(s) or custodian(s); or
  • A child under the age of 18 who is without a place of shelter where supervision and care are available, who is not otherwise covered under §371(3)(a) of SSL; or
  • A person who is a former foster care youth under the age of 21 who was previously placed in the care and custody or custody and guardianship of a local commissioner of social services or other entity authorized to receive children as public charges, and who was discharged from foster care due to a failure to consent to the continuation in placement, who has returned to foster care pursuant to §1091 of the FCA

The Destitute Child Act is a critical tool in supporting our homeless youth clients, making them eligible for funding and foster care services without a finding of neglect or abuse. Indeed, the Office of Children and Family Services indicates that unaccompanied minors fall within the definition of a destitute child and local departments of social services are directed to serve such children accordingly.[iv]

3. Increase funding for RHY Drop-in Centers

RHY drop-in centers are an invaluable resource for our young immigrant clients. We send many of our clients to these centers to access mental health counseling, health care, GED and ESL classes, and creative arts activities. Drop-in centers are also a way for youth to begin the intake process for the RHY shelter system.

Young people and their families are invaluably served when a youth has a safe place to stay while both sides take time to cool off after a disagreement. Many of these youth need never become homeless in the first instance if they can take time off away from one another in a safe environment, access services and find a supportive environment. Our City’s drop-in centers already do this work extremely well despite insufficient funding from the City and State.

We urge the members of the Committee on Immigration to work with your colleagues at City Council, the State legislature, Runaway and Homeless Youth (RHY) service providers, DYCD and other stakeholders like BDS to fully fund drop-in centers in all of the five boroughs so that they may be open 24 hours a day, seven days a week.

4. Continue funding social workers in cases involving immigrant youth

BDS immigration clients are fortunate in that they are able to take advantage of in-house social work services from our criminal, family, adolescent and civil practice areas.  BDS’s social work team place our immigrant and non-immigrant clients alike in a wide variety of programs in the local area, endeavoring to identify the best services for each client, taking into account his or her specific background and needs.[v]

We hope that City Council will continue to fund social work positions and will consider expanding funding to ensure that every immigrant youth in the City can access the services that will ensure a successful transition to life in this country. 

Conclusion

BDS is grateful to City Council for the important steps that it has taken to support immigrant youth and families. However, there are more areas where City Council can take action.

To that end, BDS recommends that City Council:

1. Fully fund Runaway and Homeless Youth crisis shelter beds in every borough, particularly in Brooklyn

2. Explore how to eliminate barriers to the use of the Destitute Child Act

3. Increase funding for RHY drop-in centers

4. Continue funding in-house social workers at legal services and defender offices to connect immigrant youth with existing community and city services.

Thank you for your time and consideration of these important issues.

 

[i] See, e.g., Meribah Knight, Far From Family, Alone, Homeless and Still Just 18, N.Y. Times, Feb. 25, 2012, available at http://www.nytimes.com/2012/02/26/us/of-young-immigrants-who-arrive-alone-many-end-up-homeless-in-chicago.html.

[ii] Mireya Navarro, “Housing homeless youth poses challenge for Mayor Bill de Blasio,” NY Times, March 27, 2015, available at http://www.nytimes.com/2015/03/28/nyregion/housing-homeless-youth-poses-challenge-for-mayor-de-blasio.html.

[iii] Ali Forney has 32 crisis shelter beds for youth who identify as LGBTQ in Brooklyn, Covenant House has 22 mother and child beds at West 52nd St in Manhattan, and Inwood House in the Bronx has 8 beds for young women.

[iv] New York State Office of Children and Family Services, Administrative Directive: Destitute Child Placement Procedures and Guidelines, Sept. 19, 2012, available at http://ocfs.ny.gov/main/policies/external/OCFS_2012/ADMs/12-OCFS-ADM-08%20Destitute%20Child%20Placement%20Procedures%20and%20Guidelines.pdf.

[v] An indicative list of partners who have recently provided services—health care, mental health services, child care, housing, education assistance, and more—to our clients is presented below:

(click image to zoom in)

services table

 

 

TESTIMONY ON INTRO 958 – CLIENT SATISFACTION SURVEYS

TESTIMONY OF:

Lisa Schreibersdorf – Executive Director

BROOKLYN DEFENDER SERVICES

Presented before

The New York City Council Committee on Courts and Legal Services

Public Hearing on Int. 958-2015

In relation to client satisfaction surveys for city-funded indigent legal services

December 4, 2015

My name is Lisa Schreibersdorf. I am the Executive Director of Brooklyn Defender Services (BDS). BDS provides innovative, multi-disciplinary, and client-centered criminal, family, and immigration defense, as well as civil legal services, social work support and advocacy, for 40,000 clients in Brooklyn every year. I thank the New York City Council Committee on Courts and Legal Services for the opportunity to testify about Intro 958-2015 to mandate client satisfaction surveys for city-funded indigent legal services.

New York City’s public defenders are among the highest quality defenders in the United States, in large part due to funding and ongoing support from the Mayor and the New York City Council and due to statutory case caps that assure adequate resources to our offices.  BDS takes pride in our ability to provide support to thousands of clients on a daily basis in a variety of ways.  One aspect of our self-evaluation is how we treat our clients, their families and the communities from which they come.  In fact, as the City Council members know, BDS is in the forefront of addressing important issues that affect these very clients and communities.  Examples of our advocacy on behalf of clients include protecting the rights of people in jail, particularly young people on Rikers Island.  In addition, BDS not only advocated for the rights of detained immigrants, we created, along with other defenders, and thanks to City  Council funding that we advocated for, the first-in-nation right to counsel program for immigrants facing deportation.

BDS has developed a model of representation that includes specialized attorneys and staff for clients with special needs, such as the mentally ill, victims of trafficking, veterans and adolescents.  In each of these units, clients receive direct and collateral services that meet their specific needs, such as helping veterans apply for a change in discharge status or assigning an education attorney to advocate for 16- and 17-year-olds in the school setting.

There is no question that BDS takes the concerns of clients very seriously, that we provide excellent legal representation and that we also provide services that our clients desperately need and often cannot access anywhere else.  We do this because it is the right thing to do, because we are morally and ethically required to do this and because as an organization that has been entrusted with significant public funds, it is the right thing to do.

Int. 958-2015 is a well-intentioned effort to assess how clients feel about the services they are receiving from BDS and other organizations.  Although BDS agrees wholeheartedly with the sentiment that led to this bill, we must respectfully oppose the legislation in its current form.

We have two sets of concerns regarding this bill.  The first and primary is the requirement in the legislation that individuals waive confidentiality when they fill out the prospective survey instrument.

Int. 958-2015 states in pertinent part:

“Such [client satisfaction] survey and instructions each shall include a prominent notice informing the client that by submitting the survey, the client waives confidentiality with respect to the client’s responses, including the existence of the representation.”

BDS strenuously objects to any legislation that requires our clients to waive any aspect of the attorney/client relationship for a client survey.  The attorney/client relationship is founded on the privileged nature of any communications between client and attorney.  This privilege is so fundamental and inviolable that it is only by way of a court order issued in very limited circumstances that we would ever disclose confidential information given to us by our client.  Once the client waives confidentiality, there may be no limit to the possible use of the information provided in the survey.  There is no way for a client (or even us, as attorneys) to understand the possible impact of such a waiver on their case now or in the future.  Information given in a seemingly innocuous survey could be used against an individual in immigration, housing, child welfare or other proceedings.  In some cases, once communications are subject to a waiver, any party can be subpoenaed to testify.  If a client waived the privilege and said he told his lawyer he was innocent, it is conceivable that a prosecutor could call the attorney to the stand and argue that the privilege has been waived, forcing the attorney to testify to the nature of the client conversations.  With the current legislation, there is nothing to prevent a prosecutor from issuing a subpoena or making a FOIL request for a client’s survey responses.

As valid as an assessment of the client experience with his or her attorney may be, it is not worth giving up this extremely precious and meaningful right.  Nor is there any reason this needs to happen. Most client surveys gauging criminal defendants’ satisfaction with their public defenders have been conducted by independent researchers, with the results collected and reported annonymously.[1] There is no other valid way to conduct such a survey.

BDS also has a variety of concerns regarding the collection, validity and use of these planned satisfaction surveys.

First, the likelihood of a statistically valid sample being obtained in these types of client surveys is very low.  In the area of health care patient satisfaction survey data, studies find that only a small percentage could be considered statistically valid or reliable.[2] We foresee similar difficulties in drafting and implementing client satisfaction surveys for legal services.

In a study of criminal defendants conducted by Washington State University researchers in 2009, 27% of potential survey takers completed the client satisfaction study. Researchers obtained the majority of their survey responses (134 total) from in-person interviews that took place at the local courthouse (68), at the public housing authority (11), and at the public defender’s office (55).[3] The least effective methods included the mailed surveys, for which only 12 responded out of the 300 mailed. Also among the least effective were the telephone (10 responses of 50 attempts) and the internet link sent via postcard (zero recorded responses out of 218 mailed). Researchers opined that “these low response rates were to be expected due to the disproportionate lack of internet access and a permanent address among members of this population.”[4]

Second, client satisfaction scores do not necessarily correlate to the quality of the work of a legal services provider or individual attorney. In our work, it is important for attorneys to be honest with their clients and give them the real story.  Many of our clients are in dire circumstances, facing significant prison time or other serious consequences.  In this system, it is only the defense attorney who is legally permitted to speak to the client once the case is brought.  Thus, the old adage about blaming the messenger is often brought to life in this context. Our clients often associate the consequences they are facing with us, as their attorney, because we are the one explaining the plea offer on the case or the risk of proceeding to trial.

It is important that we be able to be straight and honest with our clients, even when the news is bad.  But if the client might decide he doesn’t “like” the attorney because of that bad news, some attorneys may decide that being “liked” is more important than being candid with the client.  This could create poorer actual legal services, a goal that is not in anyone’s best interest.

Client satisfaction surveys have resulted in absurd unintended consequences in the medical field, such as an uptick in prescribing unnecessary medications to patients.[5]  The Atlantic recently reported that an alarming number of hospitals offer poor care and still get high patient-satisfaction ratings. These are hospitals, in other words, that patients like but which have higher rates of patient fatalities, hospital re-admittance, or serious complications. As one clinician noted in the article, “Patients can be very satisfied and be dead an hour later.”[6]

BDS values conveying information honestly and candidly to our clients.  We also value excellent legal work, including investigation of cases, researching legal issues, conferencing cases with colleagues and supervisors, attending continuing legal education programs and training sessions. Each of these actions are invisible to clients yet may be the most important in obtaining the best possible result in each case. To be sure, treating clients with dignity and respect is the hallmark of our office.  We know that in the lives of poor people, callous treatment is commonplace.  We take the time with our clients so they know what is happening in their court case, so they can adequately explain the circumstances of their arrest to us and so they can ask questions about the justice system.

Many of our clients are mentally ill, have developmental disabilities or are facing obstacles that are unimaginable to the City Council.  In Brooklyn, a large percentage of our clients are from other countries and do not understand anything about the American judicial system.  It is hard to imagine how these issues will be factored into surveys.

 

Proper evaluation and measurement of client experience

It is completely appropriate and desireable for the the Mayor’s Office of Criminal Justice to collect and assess information on the quality and effectiveness of legal offices that provide services to New York residents.  We would look forward to working with the Mayor’s office to analyze the standards by which we should be judged—such as standards set forth by the New York State Office of Indigent Legal Services.  Fundamental understanding about what it takes to provide the type of defense work we do would be as valuable to us and our clients as it would be to the City.

BDS recommends that the City Council engage with an independent consultant to analyze the best way to assess the services provided by public defenders and to gain an understanding of the concerns of the consumers of the criminal justice system.  This could improve the experience of the public and create a more fair and just system, goals we can all agree with.

[1] See Christopher Campbell et al, Unnoticed, Untapped, and Underappreciated: Clients’ Perceptions of their Public Defenders, Behav. Sci. Law (2015).

[2] John Sitzia, How valid and reliable are patient satisfaction data? An analysis of 195 studies, 11 Intl J. for Quality in Health Care 319–328 (1999).

[3] Christopher Campbell et al, Unnoticed, Untapped, and Underappreciated: Clients’ Perceptions of their Public Defenders, Behav. Sci. Law (2015), p. 5.

[4] Id.

[5] For example, when the Affordable Care Act linked patient satisfaction surveys to hospital pay, many experts noted an uptick in the prescription of opiate drugs as an unintended consequence. See, e.g., Jeffrey Bendix, Are Medicare’s patient satisfaction surveys contributing to opioid abuse?, Medical Economics, June 26, 2014.

[6] Alexandra Robbins, The Problem with Satisfied Patients, The Atlantic, April 17, 2015 available at http://www.theatlantic.com/health/archive/2015/04/the-problem-with-satisfied-patients/390684/. Unsurprisingly, research shows that hiring more nurses, and treating them well, results in the best patient outcomes. See, e.g., Matthew D. McHugh et al., Nurses’ Widespread Job Dissatisfaction, Burnout, And Frustration With Health Benefits Signal Problems For Patient Care, 30 Health Affairs 202-210 (2011); see also Norman Lefstein, Securing Reasonable Caseloads, American Bar Association (2011), available at http://www.americanbar.org/content/dam/aba/publications/books/ls_sclaid_def_securing_reasonable_caseloads.authcheckdam.pdf (arguing the importance of reducing public defender caseloads in order to improve the quality of representation)

 

TESTIMONY BEFORE NYC COUNCIL HEARING ON THE IMPACTS OF COURT OBSTACLES AND OVERCRIMINALIZATION ON IMMIGRANTS

Sarah Vendzules – Immigration Practice

The New York City Council Committees on Courts & Legal Services and Immigration
Oversight Hearing Evaluating Attorney Compliances with Padilla v. Kentucky and Court Obstacles for Immigrants in Criminal and Summons Courts

My name is Sarah Vendzules and I am a supervising attorney in the Padilla Unit of the Immigration Practice at Brooklyn Defender Services (BDS). Our organization provides innovative, multi-disciplinary, and client-centered criminal defense, family defense, immigration, civil legal services, social work support, and advocacy to more than 40,000 indigent Brooklyn residents every year. I thank the New York City Council Committees on Courts & Legal Services and Immigration, and in particular Chairs Rory Lancman and Carlos Menchaca, for the opportunity to testify with respect to compliance with Padilla v. Kentucky and obstacles for immigrants in the Criminal and Summons Courts.

I must say at the outset that BDS is extremely thankful to the City Council and the Administration for funding the nation’s first public defender system for indigent immigrants facing deportation and promoting a more fair and just process for our immigrant communities. As a result of the Council’s visionary leadership, today the City can say that no New York family will have a loved one locked up and deported simply because they cannot afford an attorney. Through the New York Immigrant Family Unit Project (NYIFUP), we have been able to say to immigrant New Yorkers that yes, we can represent you if you don’t have the means to pay a lawyer. With a renewed commitment of $4.9 million this year, New York remains the national leader in ensuring that every detained immigrant facing deportation will have a lawyer if she cannot afford one, and we look forward to the continuation of this program.

Padilla v. Kentucky

On March 31, 2010, the United States Supreme Court held in Padilla v. Kentucky that criminal defense attorneys have a Sixth Amendment duty to advise noncitizen defendants about the immigration consequences of their criminal convictions.[1] In the Padilla era, every actor in the criminal justice system must recognize that the realities of being an immigrant in the United States can change the meaning of justice. Often, the consequences of an immigration proceeding are far more severe than those of the criminal case that precipitated it.

We at BDS have created and evolved a model for Padilla advisals and immigration representation to meet the complex and interdisciplinary demands of 21st century immigration representation. Our immigration attorneys function in an embedded capacity, as integral parts of the public defender office.  They draw on its vast resources to forge creative and sophisticated solutions to immigration problems. Our immigration attorneys are present at every stage of a criminal case, beginning at the criminal court arraignment, where issue spotting can mean the difference between deportation and release. Due to the early intervention by our immigration attorneys, we are able to quickly identify the variety of options and remedies available to our clients and help them make the best decision possible among the options at hand. To accomplish this, the knowledge base of our immigration attorneys must go far beyond the immigration consequences of criminal convictions, reaching diverse areas of the law and requiring interaction with a variety of administrative agencies. We are proud to say that BDS’s Padilla practice is a model program for defense offices across the country to follow.

That said, providing Padilla advice in a criminal proceeding is not, by itself, enough to protect our immigrant communities.  In reality, by choosing to address certain behaviors through arrest and prosecution in criminal courts, our City and State inevitably make many immigrants extremely vulnerable to federal immigration consequences.  Despite recent reforms, our City, State, and Country continue to rely on over-policing, mass incarceration and deportation in lieu of effective policies and programs to address mental illness, poverty, addiction, homelessness, and widespread invidious discrimination. These issues disproportionately impact New York’s immigrant communities. For example, the ongoing war on drugs continues to ensnare large numbers of immigrants and other people of color. Many of our clients have unmet mental and physical health needs, and the resulting pain and anguish often leads to illicit drug use. Likewise, many immigrants’ lack of citizenship status creates barriers to employment, education and benefits, leaving them with few options. The criminalization of poverty—the preponderance of arrests for turnstile jumping, “feet on the seat,” trespassing, and more—destabilizes vulnerable immigrants and their families and communities. Law enforcement intervention and incarceration are generally among the most expensive and least effective responses to social problems, yet they often serve as our first and only strategy.

Collateral Consequences of Criminal Convictions for Immigrants

The term collateral consequences can imply subordination to criminal sentences, but in reality, “collateral” consequences can be far more severe. The American Bar Association has identified 47,001 federal statutory collateral consequences of criminal convictions and an additional 1,274 here in New York.[2] This figure excludes non-statutory collateral consequences, such as discrimination in housing, employment, and education. Both statutory and non-statutory consequences compound the marginalization and oppression that immigrants endure in our society.

Immigration consequences are among the harshest of the so-called collateral consequences. Even non-criminal violations trigger immigration consequences, including ineligibility for Deferred Action for Childhood Arrivals (DACA) and any expanded executive action that survives legal challenges.  Under the DACA guidelines, anyone with three “misdemeanors” is completely ineligible and barred from receiving DACA status.  Unfortunately, because New York violations like disorderly conduct and trespass are technically punishable by over five days in jail, they are considered “misdemeanors” for federal purposes and for the purposes of DACA.  These non-criminal violations are considered so minor that they frequently do not even appear on a person’s rap sheet.  They are regularly offered to our clients on cases where the District Attorney’s office does not believe they can prove their case or does not believe that our clients are guilty.  They are frequently the result of over-policing: our clients are arrested for minor offenses that the District Attorney’s office does not care enough about to prosecute.  And yet disorderly conduct convictions stand between our clients and lawful status, work authorization, a driver’s license, a social security card, a college scholarship, protection from deportation.  They literally stand between our clients and their future.

Furthermore, these same non-criminal violations, because they are federal “misdemeanors”, make our clients into enforcement priorities for the Department of Homeland Security (DHS).[3]  They make harmless New Yorkers—our friends, neighbors, coworkers and local small business-owners—into “criminal aliens” who, according to DHS, “should be removed.”[4]

In addition, certain other minor offenses such as unlawful possession of marijuana (a non-criminal violation) and turnstile jumping (prosecuted as “theft of services” and classified as a misdemeanor) result in mandatory incarceration in DHS’ detention facilities while undergoing immigration proceedings. New York City’s Detainer Discretion Laws were a critical step in the right direction, and we applaud our City Council’s leadership in forging these city laws that limit the circumstances under which the New York City Police Department (“NYPD”) and Department of Correction (“DOC”) will honor an ICE detainer or otherwise cooperate with federal mass deportation programs. Still, our criminal justice system continues to cause decent, hardworking immigrants to be apprehended by Immigration and Customs Enforcement.

The following is the story of one of our clients: Mr. A entered the U.S. for the first and only time as a lawful permanent resident in 1988 and has resided in NYC since that time. He has 5 siblings who are US citizens and both of his parents also have lawful status in the US. His entire family lives in New York, and he, himself, is a New Yorker. He has severe cognitive impairments and has also been diagnosed with several mental health disorders. Mr. A is now, as we speak, in removal proceedings based solely on convictions for crimes of poverty—petit larceny and turnstile jumping—and is subject to mandatory detention by ICE. DHS’s position is that both of these convictions are “crimes involving moral turpitude,” thus warranting deportation. During his first weeks in ICE custody, Mr. A attempted to hang himself and was treated temporarily at a hospital. He was then returned to the immigration jail. The immigration judge, the Office of Chief Counsel (i.e., the immigration prosecutors), and ICE all refuse to release him. There are various forms of relief that we can pursue, such as asylum, but they are not guaranteed, and because of the backlog in immigration court he will probably be detained for a minimum of eight months.

There are a number of actions our City can and should take to lessen the harm of contact with the criminal justice system, but the fact remains that the system is largely designed to hurt people. Recent Council efforts to ‘ban the box’ and improve transparency in our criminal justice and jail systems represent meaningful progress, and certainly more can be done. However, the primary driver of reform must be restricting the use of law enforcement intervention and incarceration to a measure of last resort and reinvesting the savings produced by declining jail and prison populations into the communities from which our clients come. An estimated 7.1 million people in New York State, or 36%, have RAP sheets. This statistic exemplifies the enormous reach of the dragnet of our criminal justice system. By reducing the number of incarcerated and criminal justice-involved people, our City and State can redirect scarce resources to provide jobs, affordable and supportive housing, mental health services, school facility upgrades, and community centers to meet the needs of this population.

Access to Justice

Immigrants and non-immigrants alike suffer curtailed access to justice in New York, largely due to a weak discovery statute and the use of rampant pre-trial detention to extract pleas, though immigrants face significant additional obstacles. These are not simply theoretical matters, but highly consequential policies that ruin peoples’ lives.

Discovery

As you may know, discovery is the compulsory disclosure, by a party to a legal action, of relevant documents and information to other party. Discovery is one of the most critical components of reaching the truth and ensuring justice. Early, complete, automatic disclosure of the evidence collected by the State is vital to both fairness and efficiency in criminal justice.  People accused of crimes in this state, and the attorneys who represent them, are regularly denied access to such basic materials as arrest reports. This practice cripples their ability to make informed decisions in their cases and dramatically increases the likelihood of sending innocent people to prison. Defense attorneys often meet their indigent clients immediately before arraignment, and do not have access to any of the information that prosecutors have picked through to build their case. This imbalance continues through plea bargain negotiations or trials. It is inexcusable, outdated, and ripe for reform. In Brooklyn, the District Attorney has generally adhered to an “open file” discovery procedure that can serve as a model for a new statewide discovery law and a counterargument to the talking points of opponents of reform. However, across the river in Manhattan, the discovery practice is among the most regressive in the nation. The practice is especially harmful to immigrants for the aforementioned reasons: Even a plea to a violation can lead to detention and deportation.

Pre-Trial Detention

Tens of thousands of New Yorkers suffer the brutality of Rikers Island every year simply because they are poor and cannot afford bail. They include people with serious mental illness, people who are medically fragile, and young people. The vast majority are people of color, including 89% of those held on $1,000 or less.[5] Noncitizens are especially vulnerable to pre-trial detention or, worse, being swindled by a bail bonds agent and then brought to Rikers after a bail bond is “forfeited” and the agent keeps the fees and so-called collateral. Every day inside increases the likelihood of job loss, loss of shelter or apartment placement, mental and physical health deterioration, and even death. Many suffer the torture of solitary confinement while still “presumed innocent.” The Bureau of Justice Assistance, a division of the U.S. Department of Justice, has found that “[t]hose who are taken into custody are more likely to accept a plea and are less likely to have their charges dropped.”[6] Of all those who receive prison and jail sentences, those who are incarcerated pre-trial receive sentences that are, on average, three times longer.[7] It is obvious that anybody who has experienced even a day in Rikers, and who faces the prospect of months or years inside, is far more likely to accept a plea that involves an admission of guilt than somebody who can fight their case at liberty, regardless of whether or not they are in fact guilty. District Attorneys consistently exploit this leverage, which amounts to selective prosecution, yet in the more than 95% of cases that end in plea deals, judges almost never challenge the disparity in offers. (The exceptions generally occur when Assistant District Attorneys accidentally acknowledge the strategy on the record.)

Ultimately, New York should live up to the American ideal of presumed innocence and end pre-trial detention for all but the most serious cases.

Language Access

Through Mayor Bloomberg’s Executive Order No. 120 (2008) and Governor Cuomo’s Executive Order No. 26 (2011), all City and State agencies that provide direct public services are required to ensure meaningful language access and provide free translation. In practice, many non-English speaking criminal defendants must choose between court proceedings in a second or third language or waiting for hours or even days for a translator in their primary language. Many choose the first option and misunderstand part or all of the hearing. A related problem is that court translators do not provide their services in secure areas (also known as “the pens” where detained defendants are held when they are brought to the courthouse). This is where attorneys converse with their clients, explain the status of a case, convey offers, discuss the risks and benefits of trial, and generally help their clients make sense of an extremely complicated criminal justice system. Without translation services in these areas, attorneys must try to converse as quickly as possible in the small holding areas behind the courtrooms, while court officers wait (patiently or impatiently) to bring the next detained person down. These conversations – if they can even be called that – are limited to five minutes or less, and are not at all confidential. Furthermore, they impede access to justice for everyone as they contribute to the delays that already plague the courts. BDS works to fill the gaps by securing our own translators when possible. But this is a highly inefficient use of the City’s resources. The Courts can and should do more to ensure that everybody gets their day in court and access to their attorney in their native language.

Courthouse Arrests

BDS strongly believes that people with direct experience in the criminal justice system are best positioned to advocate for change. Our client, Clarence Threlkeld, will be testifying to travesty of courthouse arrests. He was arrested in court by ICE and detained, though his case was ultimately dismissed with prejudice.  After five months in detention, the Immigration Judge found he was a U.S. citizen. While I will defer to Mr. Threlkeld on the details of the issue, I must state for the record that BDS strongly urges our City and State to do all that they can to prevent ICE from making courthouse arrests and discouraging our immigrant clients from defending themselves and seeking justice in court.

BDS has other clients who are not so fortunate as to be able to testify here today, and so we will have to be the ones to speak on their behalf. Another client, who I will call Mr. B, is currently sitting at the Buffalo Federal Detention Facility in upstate New York. Mr. B was brought to this country forty-eight years ago as a baby. He has been a green card holder ever since. Mr. B was arrested eighteen years ago for a burglary and served time upstate. He was released to the community and was a rehabilitation success story thanks to a variety of services provided by our State and City. Because he suffers from mental illness he was living in supportive housing and participating in a program funded by the New York State Department of Mental Health aimed a transitioning him to independent living. He had also been receiving weekly psychiatric treatment including psychotherapy and medication therapy at the New York Psychotherapy and Counseling Center, and had been attending substance abuse treatment five days a week at Housing Works. He was just about to graduate to his own apartment. One evening last February, while visiting his girlfriend who lives in a public housing project, he stopped to chat with a mutual friend in the hallway. The friend was smoking a joint. The NYPD, probably conducting a vertical patrol, encountered the two men. Though Mr. B, who is regularly drug-tested through his program, was not smoking, both were charged with marijuana possession. (This, by the way, is an extremely common situation among our clients.  One person might have marijuana but six people will be charged with its possession – a boon to NYPD’s arrest numbers. These cases will almost invariably end up in an ACD or a violation, but our clients miss days of work, lose jobs, get kicked out of shelter, fail to show up to pick up their kids from school, and even – as happened to Mr. B – end up in ICE detention). Mr. B was given a desk appearance ticket.  When he went to court, he noticed that two men were watching him intently from the back of the courtroom.  He waited in the courtroom for his case to be called. After several hours, he was approached by a court officer and told, “There’s someone who wants to talk to you, go outside.” Mr. B told the court officer he did not want to leave the courtroom because he was afraid of getting a warrant if his case was called in his absence. The court officer told Mr. B that a warrant was the least of his problems. Mr. B obeyed the officer and left the courtroom. The men from before, ICE agents, were waiting for him in the hallway to take him into custody. The ICE officers must have been cognizant that they had done something that was not quite above board, because they reported on their paperwork that they arrested Mr. B on the corner of Schermerhorn St. and Boerum Place, rather than inside the courthouse itself. Mr. B’s criminal case would almost certainly have been dismissed, but he never got the chance to appear on it. Instead he was given a warrant for failing to show up to court.

Because he is mentally ill, Mr. B was told by ICE that no facility in the New York City area could take him. Instead, he was sent to Batavia, NY, a six-hour drive away, and his removal proceedings were set before an immigration judge based in the detention facility. Unsurprisingly, there are very few pro bono attorneys willing and able to provide legal services in Batavia. Mr. B was not able to find an attorney to represent him on his case. It was only through the extreme persistence of his fiancé that he was able to find an someone willing to file a change of venue motion to bring his case back to New York City. Once he was back in New York City we were able to pick up his case through NYIFUP. Because Mr. B is subject to “mandatory detention” because of his 18-year-old conviction, he has already spent six months in ICE custody and will spend six more as his hearing on relief is not scheduled until March of next year. Mr. B is far from alone. We have another client who was arrested by ICE just last month outside the Red Hook community courthouse after his monthly check-in to update the Court on the progress of his drug treatment program. These stories exemplify the harm caused by the over-policing of our communities, the sharing of information with ICE, and the intrusion of ICE into our courthouses.

Services Available to Immigrants in the Criminal Justice System

BDS’s Padilla unit has observed two critical problems in the services available to immigrants in the criminal justice system. The first is that some alternatives to incarceration (ATI’s) and other court-mandated programs require upfront guilty pleas. These pleas, often to the top charge of the complaint or indictment, must be taken as a condition of receiving treatment. For U.S. citizens this is less problematic, though not without consequences. If the client completes the program successfully, the plea will be vacated and the case will be sealed for most employers. For noncitizens, on the other hand, these pleas can lead directly to deportation.  Because of the way the immigration law is written, a guilty plea that is later vacated pursuant to participation in a rehabilitative program still counts as a “conviction” for immigration purposes.[8]  We have seen instances where the District Attorney’s office and the judge were willing to allow the client to participate in a program without an upfront guilty plea.  Because the program was not willing to accept the client without a plea, however, the client was faced with an impossible situation. The only way to receive much-needed treatment was to plead guilty (actual guilt, innocence, or possible defenses to the charge notwithstanding). But, by doing so, he would make himself deportable and subject to mandatory detention by ICE. This is not fair. Pleas and convictions should occur through truth-seeking hearings, not program admissions applications. Not all programs require upfront pleas; many do not. We submit that the Council should use its budgetary powers to support the universal adoption of this more just and inclusive approach.

The second problem that we have observed is that some of these program lack translation services. We have seen clients unable to participate in a program because they do not offer services in Spanish. Clients who speak less popular languages have an even more difficult time. Again, the Council should use its funding power to support programs with language access policies that mirror those of the City.

Services for Immigrant Victims of Crimes

It is a common misconception that public defenders only represent accused perpetrators of crimes, and not victims. On the contrary, perpetrators of trauma-inducing crimes are often, themselves, victims of related traumatic incidents. Perpetrators of crimes of poverty are often victims of crimes of poverty. One prevailing trope in the cycle of victimization is that people in power choose whom to treat like criminals, and when, based on a lack of understanding of the lives they have lived.

As defense attorneys, we defer to other hearing participants to provide expert testimony on the services available to immigrant victims of crimes, but we nonetheless feel obliged mention one stark example of a gap in services available to victims.  This is the NYPD’s refusal to certify U Visas for people with criminal histories. The U nonimmigrant status (U visa) is provided by the federal government for “victims of certain crimes who have suffered mental or physical abuse and are helpful to law enforcement or government officials in the investigation or prosecution of criminal activity.”[9]  The certification must be signed by a law enforcement agency. This is a threshold requirement: without a law enforcement certification a victim has no hope of securing a U visa. For cases where a perpetrator was never identified or prosecuted, the NYPD is the agency that must certify that a person has been a victim of crime and has been helpful to law enforcement. Unfortunately, the NYPD has taken it upon itself to refuse to sign certifications for victims who have also been convicted of crimes. This is not a blanket prohibition, but we have had several cases where the NYPD has refused to certify citing our clients’ criminal records. Whether someone has a criminal record has absolutely nothing to do with whether he or she was a victim of crime and has cooperated with law enforcement in the investigation of that crime. The signing of a U visa certification does not guarantee that someone will receive a U visa. The applicant’s complete criminal record will be sent to Immigration as part of the application. It is for Immigration to decide whether the person merits a U visa in an exercise of discretion. To deny a certification is to deny an individual the chance to make their case to Immigration. It is completely inappropriate for the NYPD and to appoint itself an arbiter of victimhood in this way. This practice is both cruel and counterproductive, as it contradicts the program’s stated purpose of encouraging immigrants to aid law enforcement in fighting certain crimes.

Conclusion

BDS deeply appreciates the commitment of this Council to the rights and well-being of immigrant New Yorkers. As efforts to achieve federal immigration reform stop and start, and as President Obama’s executive action goes through the courts, New York City is working to expand its services and support for immigrants within the limits of its jurisdiction. Given the intransigence of ICE’s aggressive apprehension and detention policies, and the agency’s enforcement priorities, the most effective way to protect immigrants is to ensure they are not ensnared in the criminal justice system. As soon as somebody is arrested, the power of our City to provide meaningful opportunities for her to have a successful life in this country is greatly diminished, and the broken policies and practices of the federal government prevail. For this and many other reasons, we hope Chair Lancman, Chair Menchaca, and other Council Members will restart the conversation about decriminalization that began to gain momentum earlier this year. Visit Rikers Island unannounced, sit through arraignments, and speak with our city’s public defenders, and you will see who is arrested and prosecuted and how they are treated. Ending inequality and healing the rift in the Tale of Two Cities often cited by this Administration will not be possible without ending over-criminalization.

Thank you for your consideration of my comments.

[1] Padilla v. Kentucky, 130 S. Ct. 1473 (2010).

[2] http://www.abacollateralconsequences.org/map/

[3] Department of Homeland Security, “Policies for Apprehension, Detention and Removal of Undocumented Immigrants” (November 20, 2014), available at http://www.dhs.gov/sites/default/files/publications/14_1120_memo_prosecutorial_discretion.pdf.

[4] Id.

[5] Jamie Fellner, The Price of Freedom (Human Rights Watch 2010).

[6] Lindsey Devers, Ph.D., Plea and Charge Bargaining (U.S. Bureau of Justice Assistance 2011).

[7] Ram Subramanian et al., Incarceration’s Front Door: The Misuse of Jails in America (VERA Inst. of Justice 2015).

[8] INA § 101(a)(48)(A).

[9] http://www.uscis.gov/humanitarian/victims-human-trafficking-other-crimes/victims-criminal-activity-u-nonimmigrant-status/victims-criminal-activity-u-nonimmigrant-status.

BDS IMMIGRATION CLIENT TESTIFIES BEFORE CITY COUNCIL ABOUT HIS COURTHOUSE ARREST BY ICE

Clarence Threlkeld – Client
The New York City Council Committees on Courts & Legal Services and Immigration
Oversight Hearing Evaluating Attorney Compliances with Padilla v. Kentucky and Court Obstacles for Immigrants in Criminal and Summons Courts

Good morning ladies and gentlemen. My name is Clarence Threlkeld. My lawyer, Ms. Jessica Rofé from Brooklyn Defender Services, asked me if I would share my story with you today. I want to tell you about the confusion, sadness and hardship that my family and I experienced after Immigration authorities arrested me in the hallway of Brooklyn Criminal Court. First, let me tell you about me. I was born in Colón, Panama in 1965. My mother is Panamanian. My father was an African-American serviceman stationed at Fort Davis in the Canal Zone. He was a U.S. citizen. After I was born, my father was transferred away from the Canal Zone to another post. There were some difficulties with paperwork and my mother was never able to join my father in the United States. Eventually my parents’ relationship ended because they were separated.

Around 1982, my mother moved to the United States to reunite with her father and stepmother, and to give her five children a better life. When my mother left Panama, I missed her a lot. So she applied for my green card so I could join her. In 1983, when I was about 18 years old, I, too, moved to the United States as a lawful permanent resident. Here, in New York, I worked as a refrigerator and air conditioning repairman, as well as in construction. I also became father to five children of my own. My youngest daughter, Elizabeth, is only two years old. Elizabeth, her mother, Antoinette, and I live together in uptown Manhattan.

In the Spring of 2014, I was arrested in Brooklyn on Misdemeanor charges. On April 30, 2014, I went to Brooklyn Criminal Court for my second court appearance. Before court, my lawyer told me that her colleague was going to be there to stand on my case, because she was tied up on another matter. As I was walking down the hallway to enter the courtroom, I heard my name called, and assumed that it was the lawyer who would stand on my case that morning. Instead, it was two men in plain clothes. They stopped me and told me they had a warrant for my arrest. I asked them what the warrant was for, and they said it was an immigration warrant. The two men took me to downtown Manhattan, first to 26 Federal Plaza and then to Varick Street. While I was at these facilities, I was scared and I felt really bad. I even cried – tears came out. The officers were asking me questions, and I couldn’t even talk because of the way I felt. They told me they had a warrant for my arrest, they processed some paperwork, and then took me to Hudson County Correctional Center in New Jersey. I was detained in New Jersey for almost six months. I thought I was going to be deported back to Panama, where I don’t really have a lot of family. I thought I wasn’t going to see my kids anymore. I was really depressed.

I appeared before an Immigration Judge three times without a lawyer while I was detained. Immigration officials said I was deportable based on misdemeanor convictions. I told the judge that my father was a United States citizen in the hope that maybe I would be spared from deportation. I thought maybe that made me a citizen too. However, it was really difficult to fight my case alone and from detention. Eventually, in the middle of October, after over five months in detention, Ms. Jessica Rofé became my lawyer through the New York Immigrant Family Unity Project. The lawyer told Immigration officers that I had a citizenship claim through my father, and that I should never have been placed in detention. Three days later, I was released. The court and immigration listened to my lawyer because she could tell them about my father in a way I couldn’t from jail. In September 2015 I won my immigration case. My case has been terminated with prejudice. In early October, I applied for a U.S. passport.

My courthouse arrest highlights many problems with immigration enforcement in New York City. First, Immigration officers arrested me before I could appear before the criminal judge. That judge ordered a bench warrant because he thought I hadn’t shown up to court. Second, Immigration officers did not even take into consideration the evidence of my U.S. citizenship that was in my file before they decided to arrest me. And they continued to keep me in jail even after I told the judge I could be a citizen in June of 2014. Lastly, my arrest and the nearly six months I spent in immigration jail created chaos, confusion and sadness for me and my family. My mother put hundreds of dollars on my commissary while I was in detention so that I could make phone calls to my family and purchase clothing to stay warm. My mother visited me a few times and she brought Elizabeth with her once. However, I spent months without seeing my children.

I hope that the City Council considers making New York City courts a safe space for immigrants. I don’t think that people should be scared to appear for an open case before a judge.

An immigration arrest like the one I experienced creates problems in a person’s criminal case. It interrupts the court process. In addition, sometimes the arrest leads to really unfair consequences, like the nearly six-month I spent in immigration jail.

Thank you all for listening to me today. I hope you consider my story when thinking about the future of immigration enforcement in New York City. Thank you.

BDS RESPONSE TO DISCRIMINATORY DEPARTMENT OF CORRECTION PLAN TO RESTRICT VISITING AND PACKAGES AND TO ROLLBACK SOLITARY CONFINEMENT REFORMS

LISA SCHREIBERSDORF – EXECUTIVE DIRECTOR

BROOKLYN DEFENDER SERVICES

Before The New York City Board of Corrections Hearing

Regarding Proposed Changes to Minimum Standards

October 16, 2015 

Thank you for the opportunity to testify regarding proposed rules relating to visitation, packages, solitary confinement and Enhanced Supervision Housing in New York City Jails. Brooklyn Defender Services represents about 40,000 people per year in Brooklyn during their criminal proceedings.  Of those, approximately 6,000 pass through the city jail system.  We have grave concerns about the proposed rule changes and their consequences for our clients, their families and communities.

The initial petition for rulemaking by the New York City Department of Correction (hereafter “the Department” or “DOC”) was received several months ago.  The Department’s proposal garnered many questions from community members, advocates, public defenders, attorneys, incarcerated New Yorkers and their families.  During your June meeting, Board members acknowledged that many important questions had been raised, contributed their own additional questions and concerns, and expressed an expectation that the Department address these concerns before rule changes would be considered.

During the Board’s July meeting, the Department delivered a presentation which did not respond to requests for empirical evidence demonstrating the need for rule changes, and did not clarify the serious concerns about vague language and procedural issues in the proposed rules.  The Department has failed in its obligation to provide evidence as to why the proposed changes are necessary, they have not demonstrated any effort to achieve the purported goals of the rule changes through less intrusive means, and there is no clear plan for implementation of the rule changes should they be adopted. The proposed rules under consideration now appear nearly identical to those proposed several months ago.

Solitary Confinement

The proposed rule changes related to solitary confinement are fundamentally about the Department’s ability to punish and isolate people in the jails without meaningful oversight or accountability, rolling back reforms limiting the use of torturous isolation in New York City.  It is astonishing that the Board has initiated rulemaking to effectively undo thoughtfully drafted rules adopted less than a year ago after an arduous process involving countless hours of work and diverse contributions from experts and stakeholders – without any compelling, documented evidence that the changes are necessary.  The Board adopted limits to solitary confinement with the express mission to reduce the harm caused by solitary confinement upon New Yorkers in city jails. Unless there is new evidence that certain people are somehow not affected by this harm, the Board would contradict its own mission if any expansion of solitary confinement is permitted. There is nothing in the proposed rules or the Statement of Basis and Purpose to explain how the harm of expanded solitary confinement will be mitigated.

The proposed rule changes consist of two main components: lengthening of solitary confinement sentences for assaults on staff and granting discretion to the Department to override the seven-day reprieve from solitary for individuals who have served thirty consecutive days in solitary confinement without meaningful oversight.

The Board should reject proposed changes to its recently adopted limits on solitary confinement without clear, documented evidence demonstrating an urgent need for such changes, including that the Department has exhausted all alternative measures to respond to violence. The Department has not publicly provided the Board or interested parties with detailed information regarding violent incidents necessitating prolonged isolation during the last several months. Indeed the evidence presented instead reflects that with a decline in the use of solitary has come a decline in assaults on staff: the Department’s Petition for Rulemaking noted an approximately 40 percent reduction in assaults on staff between FY2015 to date and the same period in 2014 (27 down from 47). Perhaps more importantly, the Department has not demonstrated with specific cases or empirical data, an effort to use alternative, less harmful and possibly more effective responses to violent behavior.  Thereby the Department fails to demonstrate a need to roll-back limits on isolation.

Override of Seven Day Reprieve

When the Board established a 30 day limit on stays in Solitary Confinement and incorporated a seven-day reprieve from solitary confinement between 30 day sentences, it did so to reduce the harm inflicted by long term solitary confinement.  To end these protections for people who are alleged to continue to engage in violent behavior will not succeed in reducing violence, and contradicts the Board’s intent to reduce the harm of long-term isolation. If 30 days of isolation does not succeed in addressing behavior, there is no reason to believe that a faster return to additional isolation will have different results. Indeed, it is likely that the isolation itself is a contributing factor to ongoing violent behavior.

At the beginning of this year, the Department successfully established the Enhanced Supervision Housing Unit to more securely house those they claimed were the most dangerous people in the system.  Yet, at this juncture, the Department claims that there are individuals who must be housed in 23 hour isolation in order to keep the jails safe.  This assertion is made without documentation that these individuals could not be safely housed in the Enhanced Supervision Housing Unit (or elsewhere), where there has been consistently low census. In fact, when asked about this population during the June Board meeting, the Department stated that only some of the people eligible for an override of the 30 day limit would have been considered for placement in ESHU.  No reasoning was provided as to why individuals who commit violent acts could not be safely housed in ESHU or other secure units (enhanced restraints units, or the close custody unit at NIC for example). If not to house the population of people leaving maximum solitary confinement stays, who need to be separated from the General Population and require increased security and programming, why were these units created?

The Department has not provided any details regarding the characteristics distinguishing those people who should be placed in ESHU and those who would be sent back to isolation should the new rules be adopted.  The Department has not endeavored to explore targeted programmatic or therapeutic interventions to behavioral issues among the small population used to justify this rule change. The Department has not utilized existing tools available to manage violence, or attempted to expand programming within existing units to provide services to a wider range of individuals, which is apparently a necessary next step in light of the Department’s claims.  Permitting an override to the seven day reprieve or longer sentences for certain infractions will only lead to an ongoing cycle of violence and isolation, with which we are all too familiar.

Violence in isolation and shortly after return from isolation is rooted in a culture of neglect and abuse in solitary confinement units.  The Board should be dubious about reports of violence in segregated housing and reports of assaults on staff which place all responsibility on incarcerated people.  How is it that people who are confined in cells 23 hours per day, escorted in handcuffs or shackles and only leaving their cells for a slightly larger cell outdoors, are responsible for committing acts of violence? The Department of Justice noted in its investigation of violence on Rikers Island that reports of assaults on staff reflected a practice of inaccurate reporting used to justify heavy reliance on solitary confinement.[1]

Our clients in solitary confinement routinely report that they are denied basic needs like toilet tissue.  They report that they do not have access to the telephone to call their families or their attorneys.  They describe an inability to access medical care. They report that they cannot get attention from mental health staff when they well up with anxiety from being made to live in a filthy concrete box without contact with other human beings.  In order to get access to these basic needs, our clients must resort to small protests like holding open the slot through which they are fed or flooding their cell. When they do, the response is routinely for the Department to send a “probe team” to extract the person violently from their cell.  In almost all cases, the person will be infracted for resisting staff or assault on staff as a result of the extraction.  These are Grade 1 Infractions which would, under proposed rules, lead to ever-longer stays in isolation.  This cycle of violence only escalates as people become more desperate and resentful about their conditions; their small moments of agency may become more drastic as their isolation persists.  It should be of no surprise that individuals who feel their only agency lies in an act of disobedience may carry this sentiment with them into the General Population – the harm of solitary reverberates through an entire system.

During the Board meeting on October 13, 2015, HHC Associate Commissioner Dr. Venters reported that many of the individuals who were the subjects of the overrides after 60 days in solitary were held over for infractions that did not involve actual violence but rather threats or gestures. He also reported that more than 89 percent had three or more mental health contacts.  According to Dr. Venters, more than 50 percent of the people in isolation overall suffer from mental health conditions which are exacerbated by isolation, leading to the very behavior that keeps them there.  This report is a good indication of the circumstances in which the proposed overrides of the 7 day reprieve would be used and who would be subjected to them.  These individuals will be subjected to continuous, long term isolation not because of “persistent violent acts” but because of gestures and threats. Unwillingness on the part of the Department and Healthcare officials to think urgently and creatively about how to manage and program this population safely has led us here. The escalation of immense and horrifying self-harm, cell-fires and desperation in GRVC 12 Main before it was shuttered this year should be foretelling of the consequences when isolation is the only response to difficult behavior. After all, the same population, including some of the very same individuals who were housed there, are now the subject of 60 day overrides, and will be denied the 7 day reprieve should the new rules be adopted.

60 Day Sentences for Assault on Staff

For many of the same reasons described above, Brooklyn Defender Services also opposes the expansion of sentences to 60 days for assault on staff. Again, the Board only recently adopted rules intended to mitigate the harm of solitary confinement and there is nothing to support a claim that committing certain acts justifies exposing people to this harm. The United Nations Commission on Crime Prevention and Criminal Justice, to which a United States delegation is a party, recently submitted a report recommending revisions the UN Minimum Rules for the Treatment of Prisoners.  Included in these recommendations is an explicit prohibition of terms in solitary confinement longer than 15 days. [2]  In light of this report, it is immoral for the Board to lengthen stays in solitary confinement – the Board should continue to move in the direction to reduce solitary confinement to internationally recognized standards which US officials have agreed are imperative to maintain human dignity.

The Statement of Basis and Purpose introducing the proposed rule changes states that sentences of 60 days in solitary confinement for assaults on staff are intended to serve as a “deterrent to dangerous behavior.”  There is no evidence to support that solitary confinement is an effective deterrent to violent behavior.  The Department has provided no evidence regarding how this rule change will impact jail violence in real terms, nor do they present a convincing argument about the need for this rule change except their desire to support correctional staff by punishing incarcerated people more severely.

Prior to reforms adopted earlier this year, the CPSU was filled with hundreds of people serving months in solitary confinement, with hundreds more on a waiting list.  Violence continued to plague the jails.  You need not look further than the recent past to know that long sentences in solitary confinement will not effectively control or deter violence.  Moreover, it is well documented that prolonged solitary confinement will only lead to more violent behavior; one notable symptom attributed to prolonged isolation (longer than 15 days) is “problems with impulse control including random violence and self-harm.”[3]

The Vera Institute recently released a report, Solitary Confinement: Common Misconceptions and Emerging Safe Alternatives, surveying a number of studies which demonstrate that the Department’s argument on this point is flawed.  The report finds that solitary confinement has not been shown to deter or reduce violence, instead pointing to alternative programming interventions as a more successful approach.[4]  We also encourage the Board to review the testimony of its own experts, Doctors Gilligan and Lee, regarding the failure of solitary confinement to effectively respond to violence in New York City Jails.  Their findings were unambiguous – if the goal is to reduce violence, solitary confinement should be reduced.[5]

The Board should advise the Department to study the reasons for declines in violence in the adolescent jail after solitary was abolished. Declines in assaults generally and assaults on staff specifically among that population have been touted as successes by the Department and can serve as a foundation to implement evidence-based practices elsewhere in the jail system. When truly difficult-to-manage individuals emerge, the Department has tools to manage this population. The Department’s petition for rulemaking, and now the Board’s proposed rules both appear to ignore that just a few months ago the Department created the new ESHU in order to more safely house individuals who may need to be separated from the population in order to protect staff and other people in the jails. There has not been a documented spike in violence toward staff and no additional evidence has been provided that the ESHU is insufficient or to support a need for longer sentences in solitary confinement. The Board should remain steadfast in its commitment to reducing the harm of solitary confinement regardless of the alleged infraction.

In short, the proposal to lengthen solitary sentences is transparently punitive, will not serve the stated purpose and should be rejected.

Conclusion

Correctional staff may view longer sentences in solitary confinement as a justifiable punishment and a convenient management tool. This does not justify the torture of pretrial detainees and it detracts from the public safety mission of the Department.  The vast majority of the people in our city jails will at some point return to their communities.  The irreparable psychological and physiological harm caused by solitary confinement will reverberate through these communities, ultimately making us less safe. The Board and the Department have an obligation to look beyond the walls of our jails to our larger communities when safety is the stated goal.

The Board must also recognize the bias with which solitary confinement is meted out in our city jails and acknowledge that the effects of any expansion in its use are likely to be felt disproportionately by people of color.  Recent research by the Department of Health and Mental Hygiene suggests that there is a relationship between race and responses by healthcare and corrections staff to poor behavior in the jails.  Black and non-white Hispanic people are more likely to be punished with solitary confinement than their white counterparts, and are less likely to be assessed for therapeutic interventions early in their incarceration.[6]  We believe the Board should share our concern that the rollback of limits on solitary confinement will unfairly impact people of color.  This is yet another reason the proposed rule changes should be rejected.

As we have stated in the past, we share the Department’s concern about jail violence, and we do not believe that the answer is to do nothing. We encourage the Board and Department to utilize all available tools to respond to violence and explore alternative responses to violence that preserve human dignity.  It is irresponsible to revert back to a response that emphasizes punishment and results in torture, all the while failing to achieve reduced violence.

Visiting

The Board should reject the proposed rule changes with regard to visiting. The emotional support our clients receive from their families is invaluable.  Family visits are a source of solace and calm for our incarcerated clients in a setting where they are dehumanized, pulled from their communities, deprived of basic needs and perpetually at risk of violence.  The vast majority of people incarcerated in city jails are pre-trial detainees who rely on their communities to fight their cases and protect their rights during incarceration.  Because the majority of people in city jail are legally innocent, their right to maintain a connection with their families and communities is so fundamental that the Board should consider any restriction on visiting and contact as an absolutely last resort. If the primary concern of the Department is reducing violence, the Department should be working to improve access for visitors, make family visits more child-friendly, and reform the arduous visiting procedures to which families are subjected. Making visits more difficult and limiting physical contact will discourage family members from visiting, causing further isolation and desperation among the incarcerated population, thereby fomenting further violence.

The Department has not presented a record to demonstrate that visitors are a significant source of contraband smuggling.  To justify its rule change, the Department has cited 29 individuals who were arrested with weapon contraband during the first 6 months of 2015. They also note 24 weapons found in visiting rooms, although they do not define what constitutes a weapon. The Department states that up to 1,500 people visit Rikers daily.[7] Starting with the Department’s data, if all the weapons referenced were smuggled in on one day – that would mean approximately 1,447 people (or 96%) had nothing to do with smuggling contraband.  To capture the full six month period, the number of visits jumps to 270,000, meaning that 269,447 visits had nothing to do with contraband smuggling during that period.  It is absurd to adopt rule changes impacting hundreds of thousands of visits due to alleged smuggling by .0001% of visitors.

As we have noted previously, the Department of Investigation has found that a large majority of contraband is smuggled into the jails by uniformed and civilian staff.  Moreover, the Board’s own report has found that a majority of weapons in the jails are made from materials found in the jails and not from smuggled items.[8]  We believe it is inappropriate for the Board to adopt rule changes proposed by the Department before requesting specific reporting regarding the Department’s efforts to control these sources of weapons, which the data show are more urgent concerns.  The recent arrest of a correctional officer smuggling large knives into a jail suggests that this officer was not particularly concerned about the security procedures to which he was subjected.[9]  This attempted smuggling took place well after increased security measures for staff were initiated by the Department. If this officer felt audacious enough to casually smuggle in multiple large knives, how many others feel confident smuggling harder-to-detect contraband into the jails?

Our Jail Services staff spends hours at the jails each week.  While waiting for clients to be produced, they witness correctional officers set off alarms at magnetometers and be permitted entry; some officers who are confronted about setting off the magnetometer will pass through three times as mandated and never clear, but still enter the jail; officers may not set off a magnetometer, but their pockets remain bulging as they walk through the gate; front gate officers look away from x-ray monitors as bags pass through the scanners; all the while, officers loudly bemoan that they have to “strip down” as they enter secure correctional facilities.  The only time our staff has witnessed contraband-sniffing dogs in the jails has been when they arrive to conduct a search of a housing unit or of visitors, never to inspect officers as they come on for a shift.

The Statement of Basis and Purpose draws a connection between visits and “the proliferation of dangerous contraband, including small, hand-to-hand weapons, such as scalpels and razor blades.” The Department has provided no data related to the number of such weapons discovered during visit searches.  In fact, during visit committee meetings our staff has requested specific data related to the number and specific type of contraband recovered during visits in order to better understand the scope of the problem from the perspective of the Department, but no such data has been provided.  The Board should reject rules based simply on the “beliefs” of the Department, without supporting evidence and documentation. Instead, the Board should re-focus their efforts to tackling issues that the data shows are more urgent and will have a greater impact on controlling weapon contraband – establishing meaningful controls on staff smuggling of contraband and embarking on significant physical plant repairs.

The Department has stated in the past, and it is noted in the Statement of Basis and Purpose, that the proposed visiting procedures resemble those of other large jurisdictions, specifically Los Angeles and Cook County.  No one has provided any information about why these jurisdictions should be emulated.  Cursory research reveals that both of these jurisdictions have failed to reduce violence.  In the case of Los Angeles, the county jail system is under renewed court scrutiny related to jail violence with a focus on violence by staff upon detainees.[10]  The second-in-command of the LA County Sherriff’s Department was indicted this year for interfering with a Federal Investigation into jail conditions which led to the arrests of several officers.[11]  The long time Sherriff Lee Baca recently resigned, many believe, due in large part to the ongoing violence and corruption in the jails.[12]  It is our position that New York City should not take lessons from Los Angeles County regarding jail management.

Similarly, Cook County is currently the subject of class action litigation related to violence and overcrowding in its jails.[13]  It has already been under Federal monitoring resulting from a 2010 consent decree with the Department of Justice related to jail violence.[14]  Simply because a jurisdiction is large does not make it a good model on which to base policy.  We urge you to reject this argument as a basis to adopt the proposed rules.

Even if you accept the Department’s argument that they must control all possible sources of contraband in order to limit violence, they already have the tools to properly control contraband entering through visits under existing procedures.  There has not been a single incident of jail violence where it has been proven, or even suggested by the Department, that the weapon in question was smuggled through a visit. The cumbersome visiting procedure for community members was described to you by our Jail Services Social Worker during your May meeting, and is reiterated below.

I visited on a Thursday; where visiting hours ran from 1 to 8pm.  As someone who had never been through the visitor center before, I didn’t know what to expect.  There were no clear signs directing you which line to wait in, what you should have ready or even what next steps would look like.

You’re required to go through three checkpoints when visiting someone and you can expect a wait time of three to five hours for a one hour visit.  I was told to leave everything in a locker, yet I’d need $.50 for the two lockers I was about to encounter, which DOC does not warn you on their website.  At the first checkpoint I was asked to take off all layers, my shoes and walk through a metal detector while my stuff went through the x-ray.  I was then required to check in according to the jail I was visiting, have my thumb print and my driver’s license scanned.  I proceeded to wait for the shuttle when the canine unit came around and an officer told me to remove everything from my lap and pockets and put my hands to my side while he went through my belongings.  When I was dropped off in front of the jail, I repeated the process and this time there was a machine set up to wipe my hands for any chemical residue.

It took one hour to reach the second checkpoint and another two hours before I sat down with the person I came see.  There’s no signage about expectations and the officers wouldn’t inform me why it was taking so long.  The officers were unexpressive, hardly said a word and acted like I wasn’t even a person.  In the third checkpoint, a private area was created by a pulled screen.  I was told to take off my shoes for the third time, turn my socks inside out, pull up my sleeves, use my thumbs to move across the inside of my pants, lift up my hair, open my mouth and eventually bend over and lift up my bra.  By the end I felt exposed and humiliated.  When I was cleared, I was told to wait again.  Overall, it took me five hours of waiting and security measures for a one hour visit.

Throughout the entire process, I witnessed several families with children.  I was a witness to their understanding of what it means to be institutionalized.  Children were patted down, invaded by dog searches and were relentlessly waiting in lines.  Visiting someone in Rikers is both psychologically and physically demanding for children and adults.

The disturbing experience described here is the norm.  We know that for many visitors conditions are much worse.  In 2010, New York City settled a lawsuit for $150,000 with a man who was seriously assaulted by correctional staff while he attempted to visit a loved one at Rikers.[15]  Another more recent complaint alleges that a woman was sexually assaulted by correction officers during intrusive searches prior to a visit with a loved one.[16]

In addition to the intrusive searches endured by family members, people who are incarcerated are subjected to strip searches before and after visiting with their family.  These strip searches are performed by officers precisely so that they can take care to find weapons or other contraband not detected by magnetometers or other scanners. If contraband is ever recovered, the Department currently has the ability to limit visits to non-contact “booth visits” through existing procedures. If staff performed the mandated searches appropriately, these procedures should be adequate to intercept contraband smuggled during visits. The Board should not punish mostly pre-trial detainees and their families for the failure of staff to follow existing procedures.  If the Board believes changes are warranted,  less onerous changes to visiting protocols should be evaluated before allowing the Department unrestrained discretion to deny or limit visits.

In addition to our objections regarding the need for rule changes, we also have serious concerns with the language of the proposed rules and their implementation if adopted.  We are pleased to see that the Board has incorporated positive language into the proposed rules that acknowledges the importance of visiting for incarcerated people and their communities, and the wide range of individuals who may compose a community for incarcerated people.  However, positive language must be reinforced by clear, detailed language and procedures which will ensure that important social connections will not be eviscerated simply based on the suspicions of a correction officer or other official. Such details are conspicuously absent in the proposed rules as presently drafted.

 

1-09(a)

The inclusion of positive language about the importance of visits and the range of people who constitute visitors for incarcerated people is admirable.  However, the changes in the proposed rule actually weaken the rights of incarcerated people to receive visits.

The existing rules read “Prisoners are entitled to receive personal visits of sufficient length and number.” The proposed rules read “All inmates are entitled to receive periodic personal visits.”  Inserting the word “periodic” and deleting the phrase “of sufficient length and number” suggests that the Department wants discretion to limit the number, length or frequency of visits certain people receive. The Department has provided no information as to why such discretion is warranted, or how it would be used.  We agree that “Maintaining personal connections with positive social and family networks and support systems is critical to improving outcomes both during confinement and reentry.” The Board should adopt language that strengthens protections for access to visits, not the opposite.

1-09(f)

The proposed limits on contact for incarcerated people and their families through a plexi-glass partition are unnecessary and harmful to incarcerated people, their families and their communities.  It is disingenuous for the Department or the Board to claim that because the partition is short, it will not interrupt sustained contact during visits. One cannot be held by their mother in the same way when plexi-glass separates them.  Sustained contact plays an essential role in the calming effects visiting provides.  Using barriers to establish more separation between incarcerated people and their support networks will lead to greater feelings of desperation and alienation, contrary to the goal of reducing violence. Again, the Department has the necessary tools to intercept any contraband entering the jails under current procedures when executed properly, and have not presented a record as to why this rule change is necessary or how it will be effective in achieving the stated goal.

1-09(a)           

Existing Minimum Standards provide the Department latitude to limit visits when there is a clear nexus between visiting and a threat to security.  The proposed rules would expand the Department’s discretion to deny or limit visits based on a set of criteria that is vague and overly broad.  The criteria includes the “lack of a family relationship,” probation and parole status, previous convictions for drugs or weapons, recent release from prison or jail, and pending criminal charges.  While the proposed rules state that “such factors alone shall not form the sole basis for the Department’s final determination,” there is no language describing how these or other factors would be weighed when determining whether to deny a visit.  Also unclear is how the Department intends to gather and evaluate information about these criteria; which staff member will be responsible for doing so, and when.  What qualifications will Department staff have to evaluate what constitutes a “close relationship” for an incarcerated person?  The Board should be deeply concerned about this vague language, as it suggests that the Department intends to research the backgrounds of innocent visitors based on no defined threat – a patent invasion of privacy.

The proposed rules also allow the department to consider the “nature” of previous convictions or pending charges to justify denial of a visit.  It is simply absurd to utilize alleged acts in making determinations to limit such an essential right as access to family visits, should you accept that the foundation of our legal system rests on a premise of innocence until proven guilty. The language notes that felony convictions and “persistent weapons or narcotics” misdemeanor convictions would be considered grounds for denying visits.  However, there is no clarity regarding what particular characteristics would be considered threatening, nor is there any demonstrated nexus between how such convictions or pending charges are related to visits and jail safety.  The result is a policy that is wrong-headed and ripe for abuse. For example, individuals with persistent misdemeanor narcotics convictions are often suffering long-term addiction and pose little risk to jail safety or contraband smuggling, but the proposed rules would permit a blanket prohibition on visits for these individuals.

Finally, consideration of previous contact with the criminal justice system will disproportionately impact poor people of color who are more likely to be the subject of discriminatory policing and prosecution.

1-09(h)(3) – (4)

As if the criteria described above were not broad enough, proposed changes to Minimum Standard 1-09(3) and (4) effectively give the Department unbridled discretion to deny visits and restrict contact based on no criteria at all.  The proposed language states that visitation rights may be denied “when such visitation would cause a threat to the safety or security or good order of the facility.” This language is so broad as to be capricious.  Importantly, this particular change would remove from the Minimum Standards any nexus to behavior during visits as a reason for limiting visit rights.  Additionally, language requiring that a threat be “serious” in order to deny visits is removed.  Finally, language requiring the Department to employ less extreme measures before imposing prohibiting visits is deleted.  What is left is complete discretion for the Department to deny visits, and questions about how exactly that discretion will be used. Who determines what is threatening?  Based on what criteria? How will any information used to make such a determination be gathered? When will the determination be made? What does “good order” mean?  All of these questions were asked months ago and yet the revised proposed rules upon which we have been invited to comment answer none of them. The Board should never have initiated rule-making without addressing these concerns, and should reject the rules as drafted now.[17]

1-09(h)(6)       

Compounding an increase in discretion for the Department, the proposed rules also include unnecessary changes to the appeal system for individuals who are denied visits.  Currently, people who are denied contact visits may appeal directly to the Board.  The proposed addition of an initial appeal through the Department of Correction is nonsensical.  The Department is already responsible for the initial determination – the proposed appeal would simply add two weeks of additional time for the appeal to be reviewed, locking out many who pass through the jails with very short stays. The Board should remain the first level of appeal to guarantee swift and independent review of the Department’s determinations about visits.

Packages

We urge the Board to reject the proposed rules related to packages.  The Department has not provided any evidence that packages are a significant source of contraband in the jails. The Department also fails to demonstrate why existing procedures to intercede contraband smuggling through packages are inadequate if followed competently.  The Board should reject the proposal as unnecessary and unfairly burdensome to poor families. The proposed rules change existing standards in two important ways 1) by requiring families to send packages through pre-approved vendors and 2) by restricting outgoing packages from people in city jails.

The vast majority of people on Rikers Island are there before being convicted of any crime because their families cannot afford to pay bail.  The proposed rules would force these same poor families to purchase anew items they already own at home. The Department claims that the cost to families will be mitigated by the use of uniforms, but ignores the need for undergarments, hygiene items, warm layers and other basic necessities for which incarcerated people rely on their loved-ones.  In light of pre-trial detention lasting years in our city, the burden on families will be significant, and cannot be ignored.  Even more disturbing, prison vendors typically charge significant mark-ups, profiteering from the incarceration of poor people around the country.  We ask that the Board reject any proposal that will add New York City to the list of places that participate in this abhorrent practice.

The proposed rules would also permit the Department to restrict outgoing packages from incarcerated people based on a “reasonable belief that limitation is necessary to protect public safety, or maintain facility order and security.”  The Department provides no information about how an outgoing package would pose such a risk and therefore fails to justify the need for this rule change. Moreover, the exceedingly weak “reasonable belief” standard will permit Department staff to arbitrarily deny people’s outgoing packages. In light of these facts, it is clear this standard has little to do with safety, and more to do with the Department’s ability to punish certain people without meaningful oversight.

ESH

The proposed rules would reduce already-weak due process standards for people placed in the Enhanced Supervision Housing Unit, and we urge the Board to reject the proposal.  While we believe the intention to return individuals from ESH into less restrictive housing is a good one, we do not believe that this must come at the expense of due process.  Instead, we would argue that the Board should establish more due process standards for ESH placement and review.

Currently, people placed in ESHU receive notice about the reasons for their placement and may submit comments for review contesting their placement, but they do not have a right to counsel or any outside advocacy, and the determination is reviewed by Department staff, not an independent body.  The only way for a person to be released from ESHU is through a poorly-defined review of the individual’s behavior by Department staff every 45 days, essentially providing complete discretion to the Department as to how long someone will remain in ESH. These procedural protections are too weak in light of the significant restrictions placed on people in the unit, including cell confinement 17 hours per day for indeterminate periods.

The proposed rules would only weaken due process protections further by allowing the Department to return an individual to ESH without notice, a hearing, or the right to contest placement. The proposed rule changes fail to delineate the circumstances which would warrant return to the unit.  There is no indication that the return to ESH would necessarily involve violent behavior, gang activity, or be related to any of the criteria used to make the initial placement in ESH. Furthermore, it is unclear who would make the determination that an individual should return to ESH, or if there is any review within the Department regarding that determination.

In light of the indeterminate nature of placements in ESHU, it is especially unjust to facilitate returns to the unit without due process protections.  The Department should be required to demonstrate a clear justification for placement in any restrictive unit based on present behavior, not simply based on an individual’s previous housing. An individual could spend a year in ESH without incident, be released to the population, and then be accused of disrespecting staff. This accusation would not warrant placement in ESH or any type of segregated housing. Under the proposed rules, however, this person would be returned to ESH without any notice or ability to challenge the determination whatsoever.  The proposed changes will do little more than open the door for cyclical placements disconnected from any nexus to present behavior and should be rejected.

The Statement of Basis and Purpose states that this rule change is intended to provide the Department with more flexibility to provide incentives for good behavior, including by transitioning individuals into less restrictive housing.  We support an incentive model in principle; however we do not believe that incentives and due process protections are mutually exclusive.  Additionally, there is no detail provided about what “incentives” are being offered, or about the operations of supposedly “progressively less restrictive” settings.  Based on client reports, the alternative settings they have been offered for release from ESH are typically also quite restrictive – enhanced restraints units, closed custody units, and administrative segregation units with no programming. Our office remains concerned about the opacity with which these units operate.

The ESHU is relatively new and should be monitored and evaluated. The Board should review the ESHU’s effectiveness in reducing violence, lengths of stay for individuals placed there, the quality of the evaluations conducted by the Department, the availability and success of programming and other metrics. There is no reason to weaken due process before the period of review delineated under the sunset provision has ended.  The Board should take seriously its task to review the use and effectiveness of ESHU, particularly in light of inconsistent reports from the Department about what population the unit is intended to house.  If this restrictive unit is not being utilized to complete the mission for which the Board approved its establishment, or if the unit has not been shown effective in reducing violence, the Board should not allow for its continued operation.

Conclusion

The issue of violence on Rikers Island is serious, and warrants serious solutions.  The proposed rules do not rise to the challenge.  There has not been compelling evidence presented to support the need for any of the proposed rule changes.  The proposed expansion of solitary confinement is directly contradictory to the academic literature, expert testimony to the Board, and respect for human dignity – all of which tell us that the practice makes our jails more dangerous and causes irreparable harm. Restrictions on visiting and packages are unnecessary, discriminatory, unjustified, will lead to further isolation of New Yorkers in city jails, and foment violence. The approach to reduce violence should be evidence-based and include increased programming, an end to solitary confinement, and a visiting process that facilitates meaningful contact with families and communities, and respects the rights and dignity of incarcerated people and their loved ones travelling to Rikers Island. Thank you for your consideration of our comments.  Please contact Riley Doyle Evans, Jail Services Coordinator at (347)-768-3017 or rdevans@bds.org with any concerns.

 

Sincerely,

 

                                                            Lisa Schreibersdorf

                                                            Executive Director

         

                                                            Riley Doyle Evans

                                                            Jail Services Coordinator

[1] US Dept of Justice, CRIPA Investigation on the New York City Department of Correction Jails on Rikers Island, August 4, 2014, 3, available at: http://www.justice.gov/sites/default/files/usao-sdny/legacy/2015/03/25/SDNY%20Rikers%20Report.pdf.

[2] United Nations Economic and Social Counsel, Commission on Crime Prevention and Criminal Justice, United Nations Standard Minimum Rules for the Treatment of Prisoners (the Mandela Rules), May 2015, Rule 44, available at: http://www.unodc.org/documents/commissions/CCPCJ/CCPCJ_Sessions/CCPCJ_24/resolutions/L6_Rev1/ECN152015_L6Rev1_e_V1503585.pdf.

[3] Physicians for Human Rights, Buried Alive: Solitary Confinement in the US Detention System, 31 (2013). Quoting Stuart Grassian, Psychiatric Effects of Solitary Confinement, 22 Wash. U. J.L. & Pol’y, 335-336 (2006)

[4] Vera Institute of Justice, Solitary Confinement: Common Misconceptions and Emerging Safe Alternatives, May 2015, available at: http://www.vera.org/sites/default/files/resources/downloads/solitary-confinement-misconceptions-safe-alternatives-report_1.pdf.

[5] Testimony of Dr. James Gilligan and Bandy Lee, available at: http://www.nyc.gov/html/boc/downloads/pdf/Variance_Comments/RuleMaking_201412/12-19-14%20Testimony%20for%20BOC%20Hearing.pdf;

[6] New York City Department of Health and Mental Hygiene, Kaba et al. Disparities in Mental Health Referral and Diagnosis in the New York City Jail Mental Health Service. American Journal of Public Health, July 2015.

[7] http://www.nyc.gov/html/doc/html/visit-an-inmate/visit-schedule.shtml

[8] New York City Department of Investigation, Commissioner Mark Peters, New York City Department of Investigation Report on Serurity Failures at City Department of Correction Facilities, November 2014.  Available at http://www.nyc.gov/html/doi/downloads/pdf/2014/Nov14/pr26rikers_110614.pdf

[9] http://www.nydailynews.com/new-york/nyc-crime/correction-officer-smuggle-knives-rikers-article-1.2373037

[10] http://www.latimes.com/opinion/editorials/la-ed-rosas-settlement-los-angeles-county-jails-20141217-story.html

[11] http://www.latimes.com/local/lanow/la-me-ln-paul-tanaka-career-20150514-story.html

[12] http://www.latimes.com/local/la-me-baca-retire-20140107-story.html

[13] Hudson et al. v Dart et al., case no. 2013cv8572 (2013)

[14] http://www.justice.gov/opa/pr/justice-department-announces-comprehensive-cooperative-agreement-cook-county-illinois-board

[15] http://www.nydailynews.com/new-york/queens-man-barry-crawford-suing-city-rikers-island-beating-article-1.455501

[16] http://www.nydailynews.com/new-york/rikers-island-visitor-sues-city-guard-groped-article-1.2390358

[17] It is inadequate for these important procedural questions to be answered after rules have been adopted or in the Department’s internal Directives.  Only the Minimum Standards are legally enforceable, available for review and comment by interested parties and subject to oversight beyond a given administration.

BDS TESTIFIES AT NYC BOARD OF CORRECTION HEARING ON THE DEPARTMENT OF CORRECTION’S NEW POLICY ON UNIFORMS FOR PEOPLE IN CITY JAILS

Kelsey de Avila, MSW – Jail Services Social Worker
Presented before the New York City Board of Correction
October 13, 2015

Good morning.  My name is Kelsey De Avila and I’m a social worker with Brooklyn Defender Services.  I’m here today to discuss issues related to DOC uniforms.

I visit with clients every week and it’s every week, especially this past month that I’m told they either only have one uniform set and/or they aren’t being provided laundry services as is required in the minimum standards: (1) Laundry service sufficient to provide prisoners with a clean change of personal or facility clothing at least twice per week shall be provided at Department expense.   There are multiple reports of people cleaning their uniforms in the sink with a bar of soap they buy from commissary.  These same people report that DOC staff does not and have not been stopping by their housing unit to pick up uniforms for laundry service.  Due to the unreliability and fear of uniforms going missing, many clients tend to write their name on the inside of their uniform.  They are now be given tickets for writing their own name inside their uniform.

I have a client who has been at incarcerated at Rose M. Singer Center on Rikers Island for 4 weeks now.  To this day, she still only has one uniform.  She’s asked her housing officer many times and is repeatedly told they don’t have any more.  I myself ask officers in the counsel area if they could call down, but am told that’s not their job.  My client washes her uniform in the sink and lays it by her bed to dry.  It’s getting cold, but she continues to wait in her underwear in a dorm until her uniform is dry enough to wear.   She has come down to the counsel room in wet pants because she had no other choice.  This is a health and sanitation issue and if DOC is going to move forward with distributing uniforms to all facilities then responsibility needs to be taken.  DOC staff needs to ensure that minimum standards are being met and people are treated with dignity.

 

I’d like to share with you all two examples our clients faced earlier this month when going to trial.

Example 1

Last week, I received a call from a client stating that her only set of court clothes were taken to property even though she had a set trial date that Wednesday.  My client advocated for herself and tried to explain to her officers that she was indeed starting trial the next day and needed to have her court clothes returned.  Unfortunately, the officers did not believe her and told her to contact her lawyer.  After she contacted our office, we called the general officer at the jail and were told that they would not make an effort to provide her her clothes, they told us “the court has to tell us about the trial date” – but because it was a family court trial, the system did not reflect a trial date.

We were calling to alert the jail that her court date the next day was indeed a trial date.   We were told and I quote: “you’re wasting my time, that’s not my job.”  On the day of her trial and I went to court early that morning and brought three sets of clothes from my own closet in the hopes that something would fit her.  DOC left her legal team completely in the dark and it wasn’t until we saw her in the courthouse that we were able to confirm.  We assume she came to court in her clothing only because we were able to locate and speak with a captain at custody management.   Though we’re grateful our client was able to advocate for herself, we should not have been put in a situation where we did not know if she would be dressed or not.

Example 2

Two weeks ago, I needed to bring court clothes to Rikers for a BDS client.  He didn’t have family that was able to bring him a suit so our office provided one.  His trial date was on a Monday and though DOC allows us to bring court clothes 24 hours in advance, it was going to be difficult to bring him clothes on a Sunday.  We called DOC general office at the jail and were told that if I dropped off the clothes Friday through the Central Visit Building, he would get them in time and there shouldn’t be a problem.   I went to Rikers the next day, Friday, going off on their word.  I waited over an hour in the visit line with other family members and visitors.  Some waiting much longer to see their loved one, others picking up property, dropping off clothes and some sending money.  I waited in line like everyone else.  Once I got through the magnetometer I was told to wait in line again to speak with an officer.

I introduced myself as staff from Brooklyn Defender Services and that I needed to drop off court clothes for a client who has trial that coming Monday.  The officer told me that I can leave the clothes, but he wouldn’t get them in time for Monday’s trial date.  We continued to go back and forth and I explained that I had called ahead and was told this wouldn’t be an issue.  An officer came by to help, but when I told her my situation she responded with, “well that jail does their own thing and we do our own thing”.  The first officer that was assisting me decided to call the jail and made a special arrangement for someone to pick up the clothes that day.  She reminded me though that this is not regular procedure. Despite all our effort, he never got the clothes.  He appeared in court for trial in a uniform, our office had to scramble clothing together and court staff kept it in the courtroom for him to change.

 

My point is, court clothes, trial dates should not be a guessing game.  We shouldn’t have to cross our fingers and hope that our clients are present and dressed when appearing in front of the judge.  I’m deeply concerned for how DOC staff handled both of these situations.  In this case, DOC’s primary responsibility was to facilitate people coming to court appropriately.  Court clothing is an essential part of fulfilling that responsibility when in fact it is their job.  With all due respect, the issues with uniforms speak to a larger problem within the Department of carrying out major changes without considering the possible consequences for incarcerated people, or setting up the mechanisms to ensure that their rights will be protected.

At Brooklyn Defender Services, we represent about 10% of the people in the city and about 100 of our clients per month are released from court, much of the time as a result of time-served pleas we could not anticipate because the offer was made in court by the judge or DA.  Those clients have been and will continue to be released from court in DOC jumpsuits.  This is incredibly dehumanizing, stigmatizing, and discriminatory.  The uniforms may not have DOC written of them, but it is not a reasonable solution for these people to pretend that they are janitors or hospital workers.

We heard today that DOC will have street clothes available, but right now, as we sit here, they don’t and people are being released in institutional uniforms.  The simple matter is you can’t roll out something of this magnitude and not think through the consequences.

I urge the board to question and review DOC’s policy on uniforms for all incarcerated people going to court.  A trial date, criminal, family or a hearing should have no bearing on limiting a person to dress in the most humanizing and professional way.

Thank you for your time.

BDS ATTORNEYS TESTIFY BEFORE CITY COUNCIL ON HUMAN TRAFFICKING INTERVENTION COURTS, VETERANS

On September 18, Brooklyn Defender Services was invited to testify at two New York City Council hearings – one examining the efficacy of Human Trafficking Intervention Courts (HTICs), and another considering legislation to create a task force to study veterans in the criminal justice system.

Jillian Modzeleski (pictured), who has served as BDS’ assigned attorney to Brooklyn’s HTIC since its inception, testified that “HTICs can be a critical tool to protect trafficking victims from many of the devastating consequences of involvement with New York’s criminal justice system, but only when District Attorneys and Judges use them for that purpose. In BDS’ experience, HTICs predominately function as prostitution courts with connections to overstretched service providers.” She further argued that treating victims of sex trafficking as criminal defendants is fundamentally inappropriate and that prosecutors’ use of the specter of punishment to persuade them to inform on their traffickers is ineffective and wrong. You can read the full testimony, which includes concrete recommendations to make HTICs more fair and effective, here.

Later that same day, Cameron Mease, BDS’ expert on Veterans Treatment Courts, told Council Members: “While veterans’ service, trauma and acute health needs might be unique, the facets of the criminal justice system that oppress them are not.” He explained that veterans—who face higher rates of PTSD, Traumatic Brain Injury, mental illness and arrests—generally suffer the compounding trauma of contact with the criminal justice system without special consideration for their service or conditions, except for the minority who are granted access to Veterans Treatment Courts. He highlighted the case of Jerome Murdough, a homeless former Marine, who baked to death in a 101-degree cell on Rikers Island after being arrested for sleeping in a public housing stairwell on a cold night. Citing this and other cases, Mease argued for expanding the use of Veterans Courts and, more generally, ending the over-criminalization and mass incarceration that has torn apart vulnerable New Yorkers, including veterans, and underserved communities in our City for far too long. You can read his full testimony here.

BDS TESTIFIES AT NYC COUNCIL COMMITTEE ON JUVENILE JUSTICE OVERSIGHT HEARING ON EXAMINING ACS’S JUVENILE OFFENDER POPULATION

Amy Albert – Criminal Defense Practice
Presented before The New York City Council Committee on Juvenile Justice
Oversight Hearing on Examining ACS’s Juvenile Offender Population
September 25, 2015

My name is Amy Albert and I am a staff attorney with Brooklyn Defender Services (BDS). Our organization provides innovative, multi-disciplinary, and client-centered criminal defense, family defense, immigration, civil legal services, social work support and advocacy to more than 40,000 indigent Brooklyn residents every year. I thank the New York City Council Committee on Juvenile Justice, and in particular Chairperson Fernando Cabrera, for the opportunity to testify on Juvenile Offenders in New York City.

BDS is fortunate to have the support of the City Council, as well as other elected officials and the Office of Court Administration, to supplement the services we provide as the public defense office in Brooklyn for people who have been arrested, are facing child welfare allegations and are facing deportation. We have developed a model of specialization to best represent certain types of clients, including adolescents, people with mental illness, and victims of human trafficking. Through specialized units of the office, we provide extensive wrap-around services that meet the needs of these traditionally under-served clients in a comprehensive way.

We are grateful for the opportunity to speak today about ways that the Administration of Children’s Services (ACS) can better serve New York City youth charged with or convicted of Juvenile Offender (JO) offenses. I currently represent a full caseload of adolescents, ages 13-21, in Kings County Criminal and Supreme Court. I am also the Coordinator of the Brooklyn Adolescent Representation Team (BART), Brooklyn Defender Services’ specialized adolescent unit. Our team represents over two thousand adolescents ages 13-21 annually. In the past five years the BDS Adolescent Representation team has represented over 150 youth ages 13-15 charged with JO offenses.

Homelessness is one of the greatest challenges that our clients face and is often either a cause of or the unintended result of a young person being charged with a JO offense. We make the following recommendations based on our experience representing youth charged and convicted of JO offenses in Brooklyn:

  • Establish and fund crisis shelter housing for youth in every borough of the City
  • Establish and fund short-term respite centers for youth and families
  • Ensure that every ACS employee receive training specific to the needs of youth charged with or convicted of JO offenses

Youth Homelessness in New York City

I represented a young man, Jayquan, who was arrested on charges of Robbery in the First Degree at the age of 15. Jayquan was charged as an adult; indicted and served approximately eight months at Crossroads before being released and returned to his family. When he was arrested, Jayquan was in ninth grade in a neighborhood high school and involved in a local crew (not as formal as a gang, but an association of youth nonetheless). When he returned home, he had earned a few more credits but would have to repeat the ninth grade again. His crew was fighting with another group of kids and both groups attended the high school to which he returned. He had lived away from his mother and siblings for many months. His mother reported that he was distant, sullen and became defensive if anyone touched him. He had angry outbursts more frequently than ever before. Within two months of his release, Jayquan was begging his mother to transfer schools because of the tension between his crew and the rival crew. Jayquan and his mom weren’t communicating well. She refused. They began arguing. The argument escalated into a physical fight. Jayquan’s mother locked him out of the house. Jayquan had nowhere to go. He tried Covenant House, but the shelter was full. Covenant House called ACS. A caseworker went out to the home and mom agreed to take Jayquan back in. This worked for a few days and then they began fighting again. This time the argument escalated and Jayquan’s mother called the police. Jayquan was arrested for a misdemeanor assault. He was back in front of the Court where the judge issued an Order of Protection preventing Jayquan from returning to his mother’s home. He had no place to go.

One of the greatest crises facing youth charged with or convicted of Juvenile Offender crimes is homelessness. When the young person returns home after a period of incarceration, the trauma that he experienced while locked up may create tension in the family and community, often leading to intra-family disputes. According to Covenant House, 50% of adolescents aging out of foster care and the juvenile and criminal justice systems will be homeless within six months. When youth are kicked out of the home they have very few options because many are unprepared to live independently, have limited education and no social support.

There is a severe need for shelter options for adolescents in New York City. The New York City Department of Youth and Community Development (DYCD) runs a range of services for Runaway and Homeless Youth. Unfortunately, DYCD only has two crisis shelters that serve all youth under 21, Covenant House and Safe Horizon Streetworks Overnight, both in Manhattan. Covenant House, near Times Square, is the largest and has about 200 shelter beds and another 140 spots for longer-term residential stays. The shelter serves youth age 16-21 and turns away about 75 people a month. Safe Horizon, located in Harlem, offers only 24 beds. There are other limited crisis shelter options for LGBTQ youth, victims of sex trafficking, and pregnant and parenting young mothers. Unfortunately, the majority of our JO clients are teenage boys of color who do not meet these criteria. Drop-in centers exist in all of the five boroughs but do not provide short-term emergency housing to accommodate youth like Jayquan.

Right now, too many of our clients live in the streets, “couch surf” or sleep on the floors or couches of friends, neighbors or even strangers. Indeed, homeless youth are more likely to be arrested, engage in criminal activity to meet their survival needs, or engage in unsafe sexual relationships or the commercial sex trade because they need a place to sleep. A 2013 study by Covenant House and Fordham University found that 1 in 4 of the surveyed homeless youth became a victim of sex trafficking or was forced to provide sex for survival needs, such as food or a place to sleep. Of these victims, about half reported that the number one reason they had been drawn into commercial sexual activity was because they did not have a safe place to sleep.

New York City’s youth homeless crisis places an enormous burden on ACS to house youth in the foster care system. Even if a young person is taken into ACS custody, because of overcrowding at the Children’s Center, some adolescents are currently being housed on Long Island away from their friends, families and schools until appropriate group or foster homes can be found. As this Committee is well aware, those group and foster homes are in short supply. Older teens may end up staying weeks or months at the Children’s Center because it is so hard to find foster homes for them.

The City must do better to provide safe shelter space for youth in the communities that they live in so that they do not end up in these situations. We urge the members of the Committee on Juvenile Justice to work with your colleagues at City Council to address the youth homeless crisis by establishing and funding crisis shelters in all of the five boroughs. You should also increase funding to the Children’s Center to ensure that youth identified by ACS can remain in their communities.

Respite Centers as a Haven for Families in Crisis

Young people and their families could be invaluably served if youth had a safe place to stay while both sides had time to cool off after a disagreement. Many of these youth need never become homeless in the first instance if they and their families have a neutral, safe place to go where they can mediate their differences, figure out a family member that the youth can stay with, or collaborate with a case manager about long-term placement options. Adolescent Respite Centers provide parents and youth with a safe place for the youth to stay while both parties cool off. New York State Assembly Members Andrew Hevesi and Joseph Lentol published an opinion piece in City & State calling for the creation of respite centers with state social services funds in July of this year.

Adolescent Respite Centers should be open 24 hours a day, 7 days per week. Youth, police or families may drop-in to the centers, and the youth may voluntarily stay there no more than six weeks. Clinical social workers would be available to evaluate the adolescent’s and family’s needs within 24 hours of entering the Center. Nurses would be available to assess health needs, including reproductive health issues such as pregnancy. Centers would not be appropriate for serious mental health diagnoses. Schooling would be available on site, along with an educational coordinator who would work with the youth and the family to evaluate the young person’s educational needs. During their time at the shelter, youth and their families would have the opportunity to create a long-term placement plan along with a case worker and receive referrals to appropriate services. Staying in the Center would not automatically trigger an ACS intervention, though licensed clinical social workers would be mandated to report abuse or neglect in such cases.

Schools, police, medical professionals, EMTs, defender organizations, and social service providers would be encouraged to refer potential families to Adolescent Respite Centers. Centers should be located in diverse communities throughout the state, in urban, suburban and rural areas. A great example of an existing Adolescent Respite Center is Wind Youth Services in Sacramento, California. We urge the members of the Committee on Juvenile Justice to work with your colleagues at City Council, the State legislature, DYCD, ACS and other stakeholders like BDS to establish and fund respite centers.

ACS Training

ACS staff should receive training about the specific needs of court-involved youth, including those charged and convicted of JO offenses who are placed at Crossroads and Horizons. ACS should work with community members like the groups that testified here today, including BDS, to develop best practices for working with this population. New York City’s Crossover Youth Practice Model could serve as a model for how to begin developing a protocol for how ACS workers at all levels of the organization interact with youth transitioning out of Crossroads and Horizons.
Conclusion

ACS staff work hard to serve New York City youth. But the challenges facing youth charged with or convicted of JO offenses are immense. City Council efforts to limit the harms of homelessness would go far in improving outcomes for youth charged with JO offenses.

To that end, BDS recommends that City Council:

  • Establish and fund crisis shelter housing for youth in every borough of the City
  • Establish and fund short-term respite centers for youth and families
  • Ensure that every ACS employee receive training specific to the needs of youth charged with or convicted of JO offenses

Thank you for your time and consideration of this important issue.

BDS TESTIFIES BEFORE THE NYC COUNCIL COMMITTEE ON VETERANS ON INT. 793 IN RELATION TO CREATING A TASKFORCE TO STUDY VETERANS IN THE CRIMINAL JUSTICE SYSTEM

Cameron Mease – Criminal Defense Practice
The New York City Council Committee on Veterans
Public Hearing on Int. 793
In relation to creating a taskforce to study veterans in the criminal justice system.
September 18, 2015

My name is Cameron Mease and I am a trial attorney with Brooklyn Defender Services (BDS). Our organization provides innovative, multi-disciplinary, and client-centered criminal defense, family defense, immigration, civil legal services, social work support and advocacy to more than 40,000 indigent Brooklyn residents every year. I thank the New York City Council Committee on Veterans, and in particular Chair Eric Ulrich, for the opportunity to testify in support of Intro 793 to create a taskforce to study veterans in the criminal justice system.

BDS is fortunate to have the support of the City Council, as well as other elected officials and the Office of Court Administration, to supplement the services we provide as the public defense office in Brooklyn for people who have been arrested, those who are facing child welfare allegations, and those who are facing deportation. We have developed a model of specialization to best represent certain types of clients, including those with mental illness, adolescents, human trafficking victims, and veterans. Through specialized units of the office we provide extensive wrap-around services that meet the needs of these traditionally under-served clients in a comprehensive way.

I have been a criminal defense attorney at BDS for four years, representing clients facing misdemeanor and felony charges. When BDS’s Executive Director, Lisa Schreibersdorf, asked me to create a new, specialized unit for veterans, I took on this role as a challenge, but also as an honor. My own grandfathers were combat veterans and shared (and didn’t share) with me many of their experiences serving our country. My own personal history, specialized trainings, and my experience getting to know and representing dozens of men and women who honorably served our country give me a unique perspective on veterans involved with the criminal justice system. I hope that my comments are helpful to the Council.

As you may know, veterans are arrested at a greater frequency than non-veterans. Many of the veteran clients I see in my practice have mental health and/or addiction issues that were caused by active duty. The most prevalent and pernicious diagnoses involve Post Traumatic Stress Disorder (PTSD) and Traumatic Brain Injury (TBI). Individuals with such diagnoses often suffer from depression, impulsivity, and a lack of self-control, leading to situations and behaviors that result in an arrest. Such individuals frequently turn to chemical substances to cope with the symptoms of their conditions, which can lead to allegations of drug possession or charges related to actions committed while under the influence of drugs or alcohol. The criminal justice system in general, and our jails and prisons in particular, are neither designed nor equipped to address their needs. I appreciate that Intro 793 stipulates that the taskforce study veterans’ entry into the criminal justice system with an emphasis on how to limit their involvement with the system altogether and help those who are criminal-justice involved transition out of it. I also appreciate that the proposed task force would include at least one representative of an organization providing legal representation to veterans, though this provision should be narrowed to specify that the member be affiliated with a criminal defense organization that serves veterans. My colleagues and I on the defense bar have a unique understanding of how the system treats—and mistreats—our clients.

Ample research, as well as BDS’s direct experience, has demonstrated that people with mental illness do not fare well in jails or prisons. Veterans with PTSD or TBI experience severe trauma due to the fact that the jail environment is likely to trigger their symptoms and greatly exacerbate their mental health. Anybody in our jails and prisons with mental illness is very likely to be subjected to the torture of solitary confinement for behaviors—the vast majority non-violent—related to their conditions. It is our strong belief that special consideration of veterans’ experiences must be integrated into any court proceedings, in order to preclude, or at least minimize, their incarceration.

While veterans’ service, trauma and acute health needs might be unique, the facets of the criminal justice system that oppress them are not. Despite certain recent reforms, our City, State, and Country continue to rely on over-policing and mass incarceration in lieu of effective policies and programs to address mental illness, poverty, addiction, homelessness, immigration, and widespread invidious discrimination. These issues disproportionately impact New York’s veteran communities. For example, the ongoing war on drugs continues to ensnare large numbers of veterans. (Of course, there is significant overlap between veterans and communities of color in New York City.) Many of our clients return from service with unmet mental and physical health needs, and the resulting pain and anguish often leads to illicit drug use. As with other populations, law enforcement intervention and incarceration are among the most expensive and least effective approaches to veterans’ use of drugs. The same can be true with other offenses; incarceration and criminal records destabilize our veteran clients and their families and communities.

Prior to Arrest

For our clients with mental health issues, the disruption of treatment and the path to pos